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CR.A/585/1993 34/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 585 of 1993
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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ARVINDBHAI
RAMNIKLAL TRIVEDI & 3 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
KB ANANDJIWALA for
Appellant(s) : 1 - 4.
MR YN RAVANI for
Respondents
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 29/06/2010
CAV
JUDGMENT
This
Appeal is directed against the judgment and order dated 30th
April 1993 passed by the learned Special Judge, Court No.3,
Ahmedabad in Special Case No.32 of 1986, whereby the appellant
herein has been convicted for the offences punishable under Section
161 of the Indian Penal Code (IPC) and Section 5(2) of the
Prevention of Corruption Act, 1947 (the P. C. Act). For the offence
under section 5(2) of the P.C. Act he has been sentenced to suffer
rigorous imprisonment for two years and to pay a fine of Rs.400/-,
in default to suffer rigorous imprisonment for a period of two
months and for the offence under Section 161 of the P. C. Act he has
been sentenced to suffer rigorous imprisonment for one year and to
pay a fine of Rs.400/-, in default to suffer rigorous imprisonment
for a period of two months. Both the substantive sentences have been
directed to run concurrently. During the pendency of this appeal,
the appellant-convict has expired, however, his three sons being his
heirs and legal representatives had filed an application for being
brought on record and vide order dated 23.7.1998 they had been
permitted to be joined as appellants in this appeal.
Briefly
stated, the case of the prosecution is that at the relevant time the
appellant herein was working as Branch Manager, State Bank of
Saurashtra, Mota Devalia Branch, District Amreli, during the period
26.12.1984 to 17.03.1986. The appellant received a loan application
from one Rameshbhai Shamjibhai Patel, resident of village Khijadia
Kotda, Taluka Babra, District Amreli, (hereinafter referred to as
the complainant ) in the month of February 1985 for Rs.8,800/-
along with quotations and other documents from the Taluka Panchayat
Office, Babra. This loan application was for the purchase of
bullock-cart. Since the application was not granted, the complainant
approached the appellant in the said branch and was told that the
scheme was closed and that he would be informed as and when the
scheme was resumed. The complainant again met the appellant after
three months and inquired about his loan application. At that time
also, he was told by the accused that he was not likely to get the
loan amount and that he would inform the complainant when the same
is due. Since there was a drought in the village, the complainant
had to go to village Vav for labour work. Two months thereafter, the
complainant approached the appellant and inquired about his loan and
was told that he would have to submit fresh quotations for bullock
cart and tyres. The complainant collected fresh quotations of
Rs.2,500/- and gave these quotations to Gram Sevak Shri Kantibhai
Patel of his village, who in turn, sent these papers to State Bank
of Saurashtra, Mota Devalia Branch. The complainant then went to the
bank on 10.03.1986 and met the appellant, who asked him to come
after two days. Accordingly, the complainant approached the
appellant on 12.03.1986 when he scrutinized his ration card etc. and
demanded a bribe of Rs.400/- as a motive or reward.
It
is further the case of the prosecution that the appellant asked the
complainant to meet Shri Sejpal, an advocate at Amreli with
documents like revenue record etc.,, pursuant to which, the
complainant went to Amreli on 13.03.1986 and met the said advocate
at about 09.00 hours. Shri Sejpal scrutinized and verified the
revenue record and returned the said papers to the complainant with
instructions to file affidavit of Gigabhai and Ranchhodbhai in token
of having sanctioned the loan to him. Thereafter, the complainant
met the accused and showed him the papers, at which point of time,
the accused repeated the demand for the bribe amount of Rs.400/-,
saying that unless the amount was paid, he would not sanction the
loan. The appellant asked the complainant to pay the amount to him
on the next day i.e. 14.03.1986 at about 10.30 hours in the bank.
Since
the complainant did not want to pay the bribe amount of Rs.400/- to
the appellant, he went to the office of the Anti Corruption Bureau,
at Amreli, and contacted Police Jamadar Harshadbhai Pandya, who was
present in the ACB Office, Amreli. The said Police Jamadar asked the
complainant to go to the ACB Office, Rajkot and to lodge his
complaint before Shri D. N. Manjaria, Police Inspector, ACB, Rajkot.
On the basis of the complaint lodged by the complainant, on 14th
March, 1986, Shri D. N. Manjaria, Police Inspector, Anti-Corruption
Bureau, Rajkot, laid a trap with the help of panch witnesses Shri
Vasantbhai K. Jasani and Shri Jagannath C. Pandya and caught the
appellant red-handed while demanding and accepting the bribe of
Rs.400/- from the complainant, near Ramji Mandir, situated in
village Mota Devalia between 10.20 to 10.40 hours. Thus, according
to the prosecution, the accused had committed the offence punishable
under Section 161 IPC and under Section 5(2) read with Section 5(1)
(d) of the P.C. Act.
The
investigation of the offence came to be entrusted to Police
Inspector M. M. Patel of CBI on 14th April, 1986. On
receipt of the case papers, the offence came to be registered as
R.C. No.6/1986. After obtaining sanction for prosecution, upon
conclusion of the investigation, charge sheet came to be filed in
the Court on 16th Decembe,r 1986. Thereafter, the charge
came to be framed at Exhibit 12 on 13th November, 1987.
The accused pleaded not guilty to the charge and claimed to be
tried.
During
the course of trial, the prosecution examined six witnesses. The
complainant, Rameshbhai Shamjibhai Patel, came to be examined as
PW-1at Exhibit 42, Panch No.1, Vasantrai Keshavji Jasani, came to be
examined as PW-2 at Exhibit 46, Danabhai Najabhai Manjaria, Police
Inspector, ACB, Rajkot, who arranged trap, came to be examined as
PW-3 at Exhibit 48, Kantilal Tulsibhai Patel, Gram Sevak, came to be
examined as PW-4 at Exhibit 54, Himansu Sudhansu Mukherji, Managing
Director of State Bank of Saurashtra, who was the officer who
granted sanction to prosecute the appellant, came to be examined as
PW-5 at Exhibit 57, and Mahendrakumar Mohanbhai Patel, Police
Inspector, CBI (I.C.), the Investigating Officer, came to be
examined as PW-6 at Exhibit 72.
After
recording the oral evidence led by the prosecution, incriminating
material came to be put to the appellant as required under section
313 of the Code of Criminal Procedure, 1973 (the Code). While
denying in general the accusations made against him by various
prosecution witnesses, the appellant said that he was falsely
implicated in the crime. The appellant submitted a detailed further
statement, Exhibit 73, in writing, running into 18 pages, which
shall be referred to hereafter at an appropriate stage.
The
learned Special Judge, after hearing the learned advocates for both
the sides and appreciating the evidence on record, found that the
prosecution had established that the appellant was guilty of the
offences noted hereinabove and convicted him for the same.
This
Court has heard Mr. K. B. Anandjiwala, learned advocate for the
appellant and Mr. Y. N. Ravani, learned Standing Counsel for the
respondent C.B.I.
Mr.
Anandjiwala, learned advocate for the appellant has taken the Court
through the entire record and has referred to the evidence of the
witnesses in detail. The learned advocate for the appellant has
submitted that in each and every corruption case, demand is the
vital and integral part of the prosecution story. It is strenuously
argued that all aspects of evidence of the witnesses show that on no
occasion, initial demand was made by the accused. Referring to the
impugned judgment and order of conviction, it is pointed out that
the learned Judge has observed on page 31 of the judgment that the
lack of demand is the only factor, which baffles him in the instant
case. There was no demand at any stage prior to laying the trap and
therefore, the learned Judge has come to the conclusion that the
demand part of the entire episode at a stage prior to laying the
trap does not assume the status of proved facts. It is pointed out
that an attempt had been made to bring on record that when the
complainant met the accused about seven days prior thereto, the
accused had told him to give some amount towards consideration and
that the complainant had explained his position and poverty. The
accused told the complainant to contact Kantibhai and at that time,
as alleged, Kantibhai had told the complainant that he would have to
pay Rs.400/- to the accused. Kantibhai is examined in this case as
PW-4, at Exhibit 54. However, he has categorically denied having
said anything about paying Rs.400/- to the accused. It is further
pointed out that the complainant has also admitted in his evidence
at various places that the accused never demanded any amount by way
of illegal gratification. It is submitted that at the fag end of his
evidence, the complainant has admitted that the accused did not
demand the bribe and did not talk about it to them, therefore, he
lost patience and took out the currency notes from his pocket and
tried to give the same to the accused. It is submitted that in the
circumstances, in the present case, there is no demand at all,
either at the initial stage or at any stage prior to and during the
trap proceedings. It is submitted that in corruption cases, so far
as the offence under section 5(1) (d) of the P.C. Act is concerned,
even demand prior to acceptance is required to be established which
is not established in the present case. It is urged that the
evidence of the complainant is thoroughly unreliable and on the
contrary, indicates that no demand was made, which would make the
defence version that the amount was thrust into the pocket of the
accused more probable. It is submitted that the evidence of the
complainant proves the defence version rather than prosecution case.
Referring to the deposition of Shri Vasantrai Keshavji Jasani, PW-2,
who is the panch witness, it is submitted that there are material
inconsistencies in the evidence of the complainant and the panch,
inasmuch as the complainant does not mention about any talk having
taken place between him and the accused, whereas the panch states in
detail about the talk between the complainant and the accused. It is
submitted that this is a material discrepancy in the evidence of the
two witnesses, which goes to the root of the matter and shakes the
testimony of the witnesses. Referring to the sequence of events as
stated in the depositions of the witnesses and in the panchnama, it
is pointed out that the sequence of events as narrated in the
depositions and the panchnama are different.
10.1
The learned advocate has drawn attention of the Court to the
deposition of Mr. Himansu Sudhansu Mukerji, PW-5, who is the
sanctioning authority, to submit that looking to the evidence of the
said witness, it is clear that he has not considered any
investigation papers, hence, it becomes clear that he must have acted
on the draft sent by the CBI. It is contended that the record of the
case was in Gujarati, whereas the sanctioning authority does not know
Gujarati and there is nothing on record to show that any translation
had been provided to the sanctioning authority and that after
considering the material, he had come to the conclusion that sanction
is required to be granted. It is submitted that, in the
circumstances, the sanction has been granted without application of
mind, probably on the basis of the draft. It is submitted that
sanction order is not based on the subjective satisfaction of the
officer independently, but due to influence of the draft sent by the
CBI. It is, accordingly, submitted that the sanction order suffers
from the vice of non-application of mind and as such, the cognizance
taken on the basis of an order of sanction, which has been passed
without application of mind, stands vitiated and as such, the entire
trial stands vitiated. It is submitted that the appellant is
required to be acquitted on this count alone.
10.2
Next, it is submitted that there are various communications on record
between the bank authorities, which speak volumes regarding the
situation prevailing at the relevant time. However, it appears that
these communications were not placed before the sanctioning
authority. If such documents had been brought to the notice of the
sanctioning authority, in all probabilities, sanction to prosecute
would not have been granted.
It
is submitted that as regards the trap proceedings, there was no
demand by the accused which is clear from the evidence of the
complainant and that the evidence of the complainant is the only
evidence qua the initial demand. It is submitted that the other
witness who is examined in respect of the initial demand is
Kantibhai, PW-4, whose evidence is totally silent on the aspect of
demand through him. It is submitted that in the circumstances,
there is no corroboration from any independent source in respect of
the evidence led by the complainant. Referring to the sequence of
events, it is submitted that the complainant is a desperate person
whose application made earlier prior to a year had lapsed and he
had to file another application. He used to inquire about the
status of his application at intervals of two three months
whenever he came to village. It is submitted that it is the
specific case of the complainant that while at Amreli, he had
visited his relatives who had advised him to go to the ACB, there
is no corroboration that he in fact had a talk with the relatives.
It is submitted that it is also the case of the complainant that he
had talked to advocate Mr. Sejpal about his desire to take the help
of ACB; however, the said advocate is also not examined as a
witness. It is contended that the office of the ACB is situated in
Amreli itself, despite which the complainant was asked to go to
Rajkot. The ACB Police Inspector Mr. Manjaria, in the midnight at
12.30 hours went in search of panchas and went to a food stall on
the roadside and selected two panchas out of all the persons
present there. It is submitted that it is difficult to believe that
out of all the persons present at the food stall, the investigating
officer was able to pick out two public servants as panchas from
the public place. It is urged that the selection of panchas is
stage managed as from several persons standing at the food stall,
two public servants were picked up and asked to come early in the
morning. That the evidence which has come on record shows that the
panchas were residing in the same area as the investigating officer
and that the brother of panch No.1 was also taken as panch on an
earlier occasion. It is accordingly submitted that the panchas are
not independent persons and are under the influence of the
Investigating Officer and as such the testimony of the panchas
cannot be relied without other corroborating evidence.
Next
it is submitted that the ingredient which is required to be proved
by the prosecution is the demand prior to acceptance. In this
context, the conversation that has taken place is of utmost
importance as regards the aspect as to whether the demand was made.
It is submitted that insofar as the question of demand prior to
acceptance is concerned, the evidence of the complainant is most
important. However, from the deposition of the complainant, it is
apparent that there was no demand prior to acceptance. That the
complainant was desperate to give this amount by way of bribe, that
he did not wait for the accused to demand money and took out the
money and handed it over to him without the demand being made. It
is submitted that out of the three ingredients, which are required
to be satisfied, two of the ingredients are not established. The
third ingredient namely, acceptance, has to be considered on the
totality of the circumstances as to whether the bribe was accepted
or thrust into the pocket of the accused. It is submitted that the
panch is an over enthusiastic panch and has deposed what was not
deposed by the complainant. Considering the fact that the
complainant was walking with the accused and the panch was
following the complainant, it is doubtful as to whether the panch
would have heard the talk between the accused and the complainant.
It is submitted that the complainant agreed as per his own say that
at all stages till he passed on the money, there was no demand. It
is contended that the evidence of the panch is to corroborate the
evidence of the complainant by way of independent evidence.
According to the complainant when no demand was made, so he became
impatient, whereas in the evidence of the panch, there is a totally
different story with regard to demand and acceptance. That as per
the say of the panch also, there was no demand made in the chamber
and yet at the instance of the accused, they came to the public
road and he demanded money where there would be so many people. It
is submitted that such a proposition is very doubtful. It is
submitted that the prosecution witness No.3, D.N. Manjaria, who was
the trap officer does not say that the complainant took out the
currency notes and gave them to the accused and hence, they have
not seen the passing of the currency notes, whereas the over
enthusiastic panch wants to attribute something to the accused. It
is submitted that the second part of the evidence is also not
reliable and the second demand is not established beyond reasonable
doubt, hence, no reliance can be placed on this aspect.
As
regards the third aspect, namely, acceptance, it is submitted that
neither of the witnesses, namely, the complainant nor the panch,
say that the accused had counted the currency notes, whereas, under
the ultraviolet light both his hands were found to be stained.
Hence, in the panchnama, story of counting was introduced. It is
submitted that the complainant is silent insofar as the signs of
anthracene inside the pocket and so is the panch. This means that
the currency notes have not been put in the pocket. Though the
complainant has said that no demand was made, he has not been
treated as hostile and that omissions have been brought on record
during the cross-examination. It is contended that when substantive
evidence is silent regarding the signs of anthracene inside the
pocket, the panchnama cannot be used as evidence to find that there
were signs inside the pocket. It is submitted that the panchnama
cannot be used as a substantive piece of evidence and can be used
only for the purpose of contradiction and corroboration of the
evidence. In the circumstances, acceptance is not established
beyond reasonable doubt.
The
learned advocate has invited the attention of the Court to the
defence version which consists of a written reply running into 18
pages, to submit that on account of the fact that applications were
being made on false demands and the applicant was being
pressurized, he had stopped processing applications which had
invited the wrath of the people. It is submitted that the appellant
was facing mental torture and agony to such an extent that he had
requested the authority to revert him to the post of clerk. That
the people of the village had a grudge against him and the trap was
arranged only because loan application of the complainant had not
been accepted. It is further submitted that from the evidence of
the complainant itself, it is evident that no demand had been made
by the accused and that, therefore, the defence version that the
complainant had tried to thrust money in his pocket is the more
probable version. It is submitted that the circumstances
cumulatively show that the defence version is the only probable
version. Reliance is placed upon the decision of the Apex Court in
the case of G. V. Nanjundiah v. State (Delhi Administration),
AIR 1987 SC 2402, for the proposition that demand is a vital part
insofar as the trap cases are concerned, and if it is not
satisfied, the prosecution fails.
Reliance
is also placed on the decision of this Court in State of
Gujarat v. Trambaklal Fulshanker Trivedi, 1979(2) GLR 60,
wherein the Court held that if there is no evidence worth the name
regarding the initial passing of the currency notes from the side
of the complainant to the side of the accused accompanied by
conversation in this behalf which the panch witness was
specifically directed to so hear, it would be hazardous to record a
finding with regard to acceptance, simply because on the evidence
of the complainant, the panch and P.S.I., it emerges that from the
bush shirt pocket of the accused, the said notes were found and
that on the test being carried out, the hands of the accused and
his bush shirt pocket revealed presence of the anthracene powder.
Reliance is also placed on the decision of this Court in
Bharatkumar Jaimanishanker Mehta v. State, 1982(1)
GLR 605, for the proposition that totality of the evidence led at
the trial must be appreciated. The Court held that the prosecution
evidence alone cannot be considered for the purpose of coming to
the conclusion as to whether the accused accepted the amount or
not. The evidence led by the prosecution, the suggestions made by
the defence in cross-examination of the prosecution witnesses, the
version given by the defence and the defence witnesses, if any,
examined at the trial, everything is required to be considered in
its totality and it is to be seen as to whether the total effect of
the entire evidence led before the Court is of a nature by which
the only conclusion possible was that the accused accepted the
amount. If such a conclusion is possible then alone it can be said
that the prosecution established the case beyond reasonable doubt.
It is submitted that none of the aspects which are required to be
established have been established by the prosecution; that, the
prosecution is not in a position to stand on its own legs and as
such, the prosecution having miserably failed to establish the
charge against the appellant beyond reasonable doubt, the appeal is
required to be allowed and the appellant is required to be
acquitted of all the charges.
Mr.
Y. N. Ravani, learned standing counsel for the respondent C.B.I.
has supported the judgment and order impugned in the appeal.
Attention is invited to the deposition of the complainant, PW-1 to
submit that the evidence of the complainant clearly spells out
demand prior to the trap proceedings. It is submitted that the
demand may not be verbal it may be by conduct. Though the demand for
a specific amount was not made directly, the complainant was told
that he would have to consider monetary aspect and as regards the
specific amount, he was asked to contact Kantibhai who told him that
he would have to pay the appellant Rs.400/- Thus the demand for
specific amount was made through Kantibhai who is an accomplice in
the crime.
Next
it is submitted that this Court is required to consider as to
whether on the evidence on record, the explanation given by the
accused is believable or as to whether the prosecution story is
improbable. Referring to the deposition of the complainant, the
panch and the investigating officer, it is submitted that the
evidence of these three witnesses corroborate each other. It is
submitted that though certain discrepancies have been pointed out,
these are minor discrepancies which are insignificant in nature and
are required to be discarded. It is submitted that the incident in
question took place in the year 1986, whereas the deposition was
recorded in October 1992, after a considerable gap of almost six
years. The witness do not have a photographic memory, therefore, it
is but natural that there would be some discrepancies in the
evidence of the witnesses. It is submitted that though the manner
in which the demand prior to acceptance as has been narrated by the
panch and the complainant may be different, there is no material
contradiction in the evidence of the two witnesses. It is submitted
that the discrepancies pointed out by the defence are not of a
substantial nature and as such, do not affect the prosecution case.
Referring
to the deposition of the panch witness, it is pointed out that
through the evidence of the said witness, the prosecution has
proved that there was a demand for an amount as well as an
assurance that on paying the said amount, the work would be done.
It is submitted that in the circumstances, demand and acceptance
are both duly proved by the prosecution beyond doubt. As regards
the discrepancies in the evidence of the witnesses, namely that the
complainant has stated that he had given the signal, whereas the
panch had stated that he had given the signal, it is submitted that
both could have independently given signals and it is only then
that the raiding party came, therefore, there is no contradiction
in that regard. It is submitted that the discrepancies shown by the
defence prima facie do not alter the case of the prosecution
regarding demand, acceptance and recovery, which are duly proved.
It is submitted that a perusal of the entire judgment of the Trial
Court would indicate that there is no serious infirmity in the
judgment and the findings recorded by the Trial Court.
Reliance
is placed upon a decision of the Apex Court in B. Noha v.
State of Kerala and another, (2006) 12 SCC 277, for the
proposition that once acceptance and recovery is proved, there is
no need for the prosecution to prove the demand. It is submitted
that in the facts of the present case, assuming that prior demand
is not established, there is a voluntary and conscious acceptance
of illegal gratification on the part of the accused and in view of
the law laid down by the apex Court in the said decision, there is
no burden on the prosecution to prove the demand.
As
regards independence of the panchas, it is submitted that having
relation with Mr. Sejpal, advocate for the bank, would not in any
manner affect the independence of the panchas and that the
proposition canvassed on behalf of the appellant is too far-fetched
to believe. It is submitted that since the panchas were to go early
in the morning, they were to be informed in advance at night,
hence, despite the fact that it was late at night, the panchas were
summoned at night. It is submitted that the defence has not been
able to show any personal interest on the part of the panchas who
are shown to be working at Rajkot. It is also submitted that
nothing has been brought on record that there was any kind of
relation between the panch and the accused and that the panchas
have not been selected at the instance of the complainant. Reliance
is placed upon a decision of the Supreme Court in State of
U.P. v. Zakaullah, (1998) 1 SCC 557, for the proposition
that mere acquaintance with police officers would not make a
witness non-independent. Every citizen is presumed to be
independent until proved to be dependent on police for any purpose
whatsoever. It is, accordingly, submitted that merely because
distant relatives of the panchas are known to the trap officer, is
no ground to hold that the panchas are not independent.
As
regards the validity of the sanction order, it is submitted that
the issue of sanction has been raised by the appellant for the
first time before this Court in the present appeal by way of an
afterthought, though the same had not been raised before the trial
Court at any stage of the trial, hence, the trial Court has not
recorded any findings in this regard. It is contended that the
public servant must show that serious prejudice is caused by
granting sanction to prosecute, whereas in the present case, no
prejudice is shown. Inviting attention to the deposition of PW-5,
it is pointed out that the sanctioning officer has himself dictated
the order after recording satisfaction though format may have been
given by the CBI. It is submitted that the sanction order is a
detailed one which discloses application of mind. When the order
itself discloses application of mind, the contention that material
particulars were not placed before the sanctioning authority is not
sustainable. In support of the said submission, the learned
Standing Counsel has placed reliance on the decision of this Court
in Dharmendra Kumar Mohanji Mishra v. State of Gujarat,
2009 (3) GLR 1963, wherein the Court has observed as under:
[15]
The point which falls for determination in this Revision is squarely
covered by the decision rendered in the case of C.S. Krishnamurthy v.
State of Karnataka, reported in 2005 (4) SCC 81 wherein at paragraphs
7 and 9 of the judgment it has been held, That the sanction
order should speak for itself and in case the facts do not so appear,
it should be proved by leading evidence that all the particulars were
placed before the sanctioning authority for due application of mind.
But, when the sanction order is itself eloquent enough, then in that
case only formal evidence has to be produced by the sanctioning
authority or by any other evidence that the sanction was accorded by
a competent person with due application of mind. In case, the
sanction speaks for itself, then the satisfaction of the sanctioning
authority is apparent by reading the order. When the sanction itself
is very expressive, then in that case, the argument that particular
material was not properly placed before the sanctioning authority for
according sanction and the sanctioning authority has not applied its
mind becomes unsustainable.
Next
it is contended that the conduct of the accused person is also a
relevant consideration inasmuch as it is not in dispute that no
explanation whatsoever has come forth as to why the application of
the complainant was kept pending for such a long time. It is
submitted that the conduct of the appellant of leaving the branch
at the beginning of working hours with a view to collect bribe
money from the complainant, itself shows the character of the
accused. It is further submitted that the accused has tried to give
an explanation which is difficult to digest and believe. As regards
the explanation regarding pressures etc., it is submitted that in
fact, no document shows that there was such pressure. In fact, the
documents show that the accused was insincere in the discharge of
his duties. The explanation regarding vendetta etc. is vague and
that, no enmity to any particular person is shown by the accused.
Reliance
is placed upon the decision of the Apex court in Shankerbhai
Laljibhai Rot v. State of Gujarat, (2004) 13 SCC 487, for
the proposition that minor variance as regards the mode of demand
is really of no consequence to corrode the credible and cogent
evidence of prosecution witnesses. It is submitted that the
previous demand is also required to be believed. It is contended
that prior demand ought not to have been disbelieved merely on the
basis of deposition of Kantibhai who was also an accomplice. It is
submitted that when the complainant’s deposition is otherwise found
to be trustworthy, the evidence as regards previous demand should
also be believed. Reliance is placed upon a decision of the Supreme
Court in Raj Rajendra Singh Seth alias R.R.S. Seth v. State
of Jharkhand and another, (2008) 11 SCC 681.
Reliance is also placed on the decision of the Supreme Court in
State of A.P. v. K. Punardana Rao, AIR 2004 SC 4194.
It is, accordingly, submitted that the prosecution has proved the
charge against the appellant beyond reasonable doubt. The Trial
Court has upon due appreciation of the evidence led before it,
recorded findings and arrived at the conclusion regarding the guilt
of the appellant and that there being no infirmity in the order of
the Trial Court, there is no warrant for this court to take a
different view, hence, the appeal deserves to be dismissed.
In
rejoinder, Mr. K. B. Anandjiwala, learned advocate for the appellant
has submitted that insofar as the validity of the sanction order is
concerned, there is no evidence on record to indicate that all the
papers of investigation were placed before the sanctioning
authority. The sanctioning authority before entering the witness box
has not refreshed his memory. It is contended that the decision
reported in Dharmendra Kumar Mohanji Mishra v. State of
Gujarat (supra) would not be applicable to the facts of the
present case. The sanctioning authority has not gone through any
investigation papers independently. The letters which form part of
the evidence were not placed before the sanctioning authority and
the order granting sanction suffers from the vice of total
non-application of mind. It is submitted that there is no evidence
on record to show as to whether the charge-sheet form was sent to
the sanctioning authority or that the investigation papers were sent
to him. As regards the contention raised by the learned advocate for
the C.B.I. that the issued regarding the validity of the sanction
was being raised for the first time in appeal, the learned advocate
for the appellant has submitted that the points for determination
are to be formulated by the Trial Court. It is further submitted
that in appeal, all evidence is required to be re-appreciated and
any question of law can always be urged even at this stage.
This
Court has perused the record of the case and has considered the
rival submissions advanced by the learned advocates for the parties
as well as the decisions cited at the bar.
It
is well settled that in a trap case the testimony of the complainant
and the panch witness are of prime importance. In the circumstances
the evidence of these two witnesses is required to be scrutinized
minutely. The complainant PW-1, Rameshbhai Shamjibhai Patel has
been examined at Exhibit 42. He has deposed that in the year 1986 he
was working as a diamond polisher and was also engaged in
agriculture. One year prior to the incident he had heard that loans
could be availed from the bank for the purpose of purchasing openers
and bullock-carts and such loans were being given to small farmers.
He, therefore, met Kantibhai who was a Gram Sevak of the
neighbouring village Devalia and obtained necessary information from
him and decided from where to buy a bullock-cart. The Gram-sevak
gave him a form for getting quotations. Thereafter he had gone out
of station for diamond polishing and returned after about three
months and met Kantibhai Patel and asked him as to why when all
others in the village had been granted loans, he not been granted a
loan. Whereupon he was told that he should meet Trivedi Saheb at
Devalia village. He, therefore, met the accused who told him that he
was late and that the scheme was closed and when the scheme is again
started he would call him. Thereafter, he again went out of station
in connection with the work of diamond polishing. Two months prior
to the incident he had again come back to his village and met
Kantibhai and at his instance he met the accused. The accused told
him that the earlier quotation would be required to be changed. He
therefore, obtained quotations for two tyres from Gondal. The
accused then told him that as and when the loan is to be disbursed
he would be called. Thereafter he again went away for diamond
polishing work. He, thereafter, met Kantibhai two to three times and
inquired from him, but was told that his loan had not been
sanctioned. Once again, seven days prior to the incident he went to
Kantibhai and told him that if he was not likely to get a loan, his
papers should be returned to him and that he does not want a loan.
Whereupon Kantibhai told him that all his papers had been given to
Trivedi Saheb, Manager of the State Bank and that he should go and
meet him. He, therefore, met the accused who told him that he had
heard that he (the complainant) does not reside at Khijadia village.
The complainant told him that he does reside at Khijadia, whereupon
the accused told him to bring evidence in the form of certificate of
the panchayat as well as his ration card, and that after
scrutinizing all the papers he would be able to tell him whether or
not he can get a loan. Thereafter on Monday, 10th March,
1986, he met the accused at the State Bank with the ration card and
certificate of the Panchayat and the accused told him to come again
on Wednesday. On Wednesday when he met the accused, he told him that
he should open an account with the bank, hence he got his account
opened and deposited Rs.100/- The accused told him that he would get
a loan and that he would have to understand the dealing to which he
replied that he was a poor person and it would be nice if he shows
some mercy towards him. Whereupon the appellant told him to go and
meet Kantibhai. The witness met Kantibhai, who told him that if he
wanted the loan he would have to give the appellant Rs.400/-.
Thereafter the witness approached the appellant and told him that he
was ready to give Rs.400/- but his work should be done by the next
day as he already had come several times. Whereupon the appellant
told him that his work would be done. Thereafter the appellant gave
him a file which contained his papers and asked him to take the file
and go and meet advocate Mr. Sejpal at Amreli. The appellant told
him to get the papers checked and bring them back soon. Hence, on
Thursday, 13th March, 1986 at 9:00 a.m., the complainant
met Mr. Sejpal, and gave him the papers. The advocate told him to
take back the papers after an hour. Since the witness had time on
his hands, he decided to meet some relatives at Amreli and
accordingly went to meet them and told them that the Gram Sevak
Kantibhai and the Bank Manager were harassing him since a year, and
now that he had agreed to pay Rs.400/- his loan was likely to be
sanctioned. He asked them what he should do in this regard. They
advised him that there was an anti-corruption department there and
if he wanted the work done without having to pay any money he should
go there. Hence, he went to the ACB office. At the ACB Office, two
Jamadars, namely, Chhaganbhai and Harshadbhai were present who told
him that they would record his complaint when he comes there the
next time. The witness then went to meet Advocate Mr. Sejpal. He
told the advocate that he did not want to pay the bribe money and
that he wanted the work to be done without paying any money. He also
told him that he wanted to lodge a complaint in that regard with the
Anti Corruption Bureau. Advocate, Mr. Sejpal advised him that there
was no problem in doing so and that, it could be done. Thereafter,
he took the papers which were signed by Mr. Sejpal and went to
Devaliya. Mr. Sejpal had told him that he would have to obtain
affidavits of his relatives Gigabhai and Ranchhodbhai. Thereafter,
he met the appellant at Devaliya with the papers, who told him to
come with the affidavits of Ranchhodbhai and Gigabhai. Thereafter,
he again met Kantibhai, who told him to come on the next day at 10
o’clock in the morning with the money. He, therefore, directly went
to his village Khijadiya and arranged for Rs.400/- and went to the
ACB office at Amreli in the evening. There, Jamadars Harshadbhai and
Chhaganbhai told him that their superior was not present and that he
would have to go to Rajkot. He, along with two Jamadars, proceeded
to Rajkot at night. On reaching Rajkot the superior officer was
called and the complainant was told to rest on a bench. In the
morning after he woke up, Mr. Manjaria had summoned two panchas and
recorded his complaint and read it over to him. Thereafter, Mr.
Manjaria asked him for Rs.400/-, whereupon he produced four currency
notes of the denomination of Rs.100/- and the numbers of the
currency notes were noted down in the panchnama. Thereafter, a
bottle and a lamp were taken out from a cupboard and procedure
regarding the ultraviolet experiment was explained to them. They
were told that the bottle contained anthracene powder which could
not be seen under ordinary light. Under instructions of Mr.
Manjaria, anthracene powder was smeared on both sides of the
currency notes and the person who smeared the anthracene powder on
the notes thereafter washed his hands. Before washing his hands, the
notes were put in the pocket of the complainant. A preliminary
panchnama was drawn and signed by the panchas. Thereafter, Mr.
Manjaria instructed them that they would all be going to Devaliya.
At about 8:15 in the morning, they set off in a jeep and reached
Devaliya at about 10:15 hours. After alighting from the jeep, the
complainant and panch No.1 Jasanibhai went upstairs in the building
of the State Bank of Saurashtra where the appellant was sitting. The
appellant told him, Come Ramesh, so you have come . Whereupon
he said, yes sir, I have come . The appellant then told them,
Come, let us go to Kantibhai’s house . Kantibhai’s house was
on the way and there was a temple near his house and there was a
corner in between. At the corner, they stopped and he gave four
currency notes of the denomination of Rs.100/- to the appellant.
Thereafter, the complainant gave the pre-arranged signal, whereupon
Mr. Manjaria and the panch and other members of the raiding party
came there. Mr. Manjariya and other officers introduced themselves
to the appellant. The appellant was frightened. As it was not
possible to carry out the experiment with the lamp on the road and
the bank was situated nearby they went there and the procedure was
carried out and thereafter, the complainant was permitted to leave
and was told that he would be called whenever necessary. The
complainant has further stated that after they went back to the
bank, the panch took out the money from the left side pocket of the
bush shirt of the appellant. The ultraviolet light was thrown on the
notes and pocket of the appellant and the signs of anthracene powder
could be seen on the edge of the bush shirt pocket. The complainant
has further deposed that the appellant had accepted the money from
him with his right hand and put it in his pocket. During the course
of his cross-examination, the complainant has admitted that when he
had handed over the documents which had been given by Sejpal to the
appellant, the appellant had not said anything about the amount
which should be given to him. He has further admitted that while
lodging his complaint before Mr. Manjaria, he had not said that
thereafter he had met Kantibhai and Kantibhai had told him that he
should come on the next morning at 10 or 11 o’clock with the money.
It has also come out in the cross-examination that the spot where
they were standing at the corner of the temple was in front of the
appellant s house and that there was no talk between the
complainant and the appellant regarding money. The complainant has
further admitted that since the appellant was not talking about the
money and was not demanding money, he had lost his patience and had
taken out the money from his pocket.
The
other important witness is the panch-witness. Vasantrai Keshavji
Jasani, Panch No.1, who has been examined at Exhibit 46. Insofar as
the procedure regarding application of anthracene powder and conduct
of ultra violet lamp experiment as well as the manner in which the
raid is carried out at Devalia, the version given by him though more
detailed, is more or less similar to the version given by the
complainant. With regard to the manner in which the incident
occurred at Mota Devalia, PW-2 said that after reaching there, they
went near the office of the State Bank of Saurashtra. There they
found the lower gate of the bank closed and therefore, they were
loitering here and there in that area. After sometime, the bank was
opened and the Manager came there. He (PW-2) and the complainant
went upstairs with the Manager. The Manager asked the complainant
whether he had come, to which the complainant replied that he had
come. Further, according to PW-2, since two other persons were
present in the bank, the Manager said Let us go down-stairs and
finish our work , and thereafter, they proceeded in the eastern
direction. After stepping down from the bank, the accused asked the
complainant who this man was, whereupon the complainant said that he
was an acquaintance and that after the work was over they wanted to
go out hence, they would directly go from there. In the meanwhile
they reached the corner of Ramji Mandir. In front of the Mandir, the
accused stood facing the north and the complainant was facing the
south. Thereafter, the accused asked the complainant whether he had
brought with him the thing which was agreed upon between them, to
which the complainant replied in the affirmative, whereupon the
accused asked the complainant to give the same to him and told him
that his work would be done. The complainant, therefore, took out
four currency notes sprinkled with anthracene powder with his right
hand from the left pocket of his bush-shirt and handed over the same
to the accused. The complainant further said that he was a poor and
a small man and therefore, his interest should be taken care of and
his work should be done, whereupon the accused said that his work
would be done; he should not worry. While this conversation was
going on, he (Panch No.1) gave the pre-arranged signal and informed
the members of the raiding party. At that time, the raiding party
was at a distance of about 7 to 8 feet from there and immediately on
giving the signal, Mr. Manjaria, panch No.2 and the Police
Constables came over to the spot and Mr. Manjaria gave his
introduction to the accused and told him to keep the money as it is
in his pocket. Further, according to PW-2, since this place was a
public road, it was not possible to carry out the experiment of
ultraviolet lamp and therefore, all of them along with Mr. Manjaria
proceeded to the bank premises. Mr. Manjaria spoke to the accused
that the complainant had complained that the accused had demanded
money for sanctioning loan and that the accused had accepted the
bribe money from the complainant. Further, according to PW-2, Mr.
Manjaria gave instructions to make use of the ultraviolet lamp. On
throwing the light of the ultraviolet lamp on the pocket of the
accused as well as the hands of the accused, light blue stains could
be seen on the border of the pocket and on both the hands of the
accused. The numbers recorded in the panchnama were compared with
the numbers of the currency notes recovered from the pocket of the
accused and the same were found to be tallying with each other.
Thereafter, Mr. Manjaria seized the bush-shirt of the accused and
took signature of both the panchas on the pocket of the bush-shirt.
In his cross-examination, it has come out that when they went to the
bank, the complainant had not given any documents to the appellant
and there was no talk regarding documents pertaining to the loan
between them. It has further come out in his cross-examination that
after carrying out ultraviolet experiment on the pocket of the
accused, he had taken out the money from his pocket. That the marks
of anthracene powder on the pocket were not marked by ball pen or
ink or with any other thing. That they had not signed on the pocket
or on any part of the shirt in the presence of Mr. Manjaria. He has
denied the suggestion that the complainant had attempted to thrust
the money in the pocket of the appellant near Ramji Mandir.
Another
important witness is Kantibhai Tulsibhai Patel, who at the relevant
time was discharging duties as Gram Sevak at Mota Devalia, has been
examined as prosecution witness No.4 at Exhibit 54. In his
deposition, he has categorically stated that there was never any
talk between him and the complainant regarding any money to be given
to the Branch Manager of the bank.
From
the evidence of the aforesaid witnesses, it is found that according
to the complainant the appellant had told him that he would get a
loan and that he would have to understand the dealing and had also
told him to go and meet Kantibhai, whereupon he had met Kantibhai,
who told him that if he wanted the loan he would have to give the
appellant Rs.400/-. Thereafter the witness approached the appellant
and told him that he was ready to give Rs.400/- but his work should
be done by the next day as he already had come several times.
Whereupon the appellant told him that his work would be done. To
corroborate the say of the complainant the prosecution has examined
Kantibhai Patel as PW-4. However, Kantibhai has not supported the
version given by the complainant and in his examination-in-chief he
has categorically stated that there was no talk between him and the
complainant as regards giving any amount to the Branch Manager of
the Taluka office. Though Kantibhai has not supported the
prosecution case on this significant aspect, the prosecution has not
thought it fit to declare him hostile to the prosecution case. In
the circumstances, the Court has to proceed on the footing that the
prosecution does not challenge the version given by Kantibhai. Thus,
on scrutiny of the evidence of the complainant and Kantibhai it is
apparent that on the question of initial demand, two conflicting
versions have been brought on record by the prosecution. One is the
version of the complainant who states that the demand for Rs.400/-
had been made through Kantibhai and the other is the version of
Kantibhai who denies any such talk between him and the complainant.
Thus, the say of complainant as regards initial demand is not
corroborated by the other prosecution witness. Thus, in view of the
conflicting versions given by the two prosecution witnesses, it
would be hazardous to place reliance upon the evidence of the
complainant qua the initial demand. In the impugned judgement, the
learned Judge has observed that, The only factor which baffles
us in the facts and circumstances of the case is the lack of demand
by the accused at a stage prior to laying the trap. The complainant
states in his examination in-chief firstly, that after repeatedly
meeting the accused, he was told by the accused that monetary aspect
would have to be understood, but the complainant did not clarify
whether any amount was specified by the accused. In the
circumstances, it is not possible for the Court to state that the
initial demand has been proved beyond reasonable doubt.
The
next ingredient which the prosecution is required to establish is
the demand prior to acceptance and acceptance. In this regard, from
the evidence of the complainant, the Court finds that while
describing what had happened after they came out of the bank
premises the complainant has stated that after they came down stairs
from the bank premises and proceeded towards Ramji Mandir, he took
out the money from his pocket and gave it to the appellant who
accepted it with his right hand and put it in his pocket. Thus, the
complainant does not refer to any talk as regards his loan
application or as regards demand for money prior to his giving the
money to the appellant. In his cross-examination, the complainant
has admitted that he had felt that the appellant was not talking
about the money and was not demanding any money; hence, he had lost
patience and had taken out the money from his pocket. Thus, insofar
as the evidence of the complainant is concerned, it is not his case
that there was any demand made by the appellant prior to the
acceptance. However, there is a significant discrepancy in the
version of Shri V. K. Jasani, Panch No.1 in this regard. The said
witness has testified that when they reached Ramji Mandir, the
accused asked the complainant whether he had brought what was agreed
upon between them, to which the complainant replied in the
affirmative, whereupon the accused asked the complainant to give the
same to him and told him that his work would be done. That the
complainant took out the four currency notes and handed over the
same to the accused and further said that he was a poor and a small
man and therefore, his interest should be taken care of and his work
should be done, whereupon the accused said that his work would be
done and he should not worry. Thus, there are two different versions
coming on record. One of the complainant who does not refer to any
conversation between him and the appellant in his examination in
chief and during the course of his cross examination the defence has
been able to bring on record the fact that the appellant had not
talked about the money or demanded any money and that it was the
complainant who had lost patience and taken out the money and given
it to the appellant. The other version is that of the panch who
talks about conversation having taken place between the complainant
and the appellant prior to handing over the currency notes regarding
demand of money by the appellant as well as assurance on the part of
the appellant that the work would be done; as well as at the time of
handing over the currency notes when the complainant said that he
was a poor and a small man and therefore, his interest should be
taken care of and his work should be done, whereupon the appellant
said that his work would be done and he should not worry. Thus,
while the testimony of the complainant is totally silent as regards
any conversation between him and the appellant as well as any demand
prior to acceptance, the testimony of the panch is otherwise,
inasmuch as the same refers to conversation between the two as well
as demand prior to acceptance. It may be that a considerable time
had elapsed between the date of the incident and the recording of
the evidence, however, the discrepancy in the evidence of the two
witnesses certainly cannot be said to be a minor discrepancy which
can be overlooked. The evidence of the panch is in the nature of
corroborative evidence, to corroborate the say of the complainant.
In the facts of the present case, nothing comes out in the testimony
of the complainant, and it is only the testimony of the panch that
refers to demand. Moreover, though the complainant has not supported
the prosecution case as regards demand or any conversation having
taken place, he has not been declared hostile to the prosecution
case. Hence, the prosecution has brought on record two conflicting
versions, neither of which is challenged by the prosecution, by
subjecting the witness to cross-examination. In the circumstances,
it would be not be safe to place reliance on the evidence of the
panch for the purpose of holding that there was a demand prior to
acceptance. In the impugned judgment, the learned Judge has observed
that, Whatever happened during the trap proceedings has been
amply corroborated by the panch witness. It could, therefore, not
be said in the instant case without any certainty that the evidence
of the complainant has not been corroborated in the material
particulars by the panch witness. However, from the facts
noted hereinabove, it is apparent that insofar as the evidence of
the complainant is concerned, there is nothing on record to indicate
that there was any demand made by the accused whereas, the case of
demand etc. only comes out in the evidence of the panch witness. In
fact in the cross-examination of the complainant the defence has
successfully brought on record that there was no demand for money
from the appellant and that the complainant having lost patience
took out the money and gave it to the appellant. Hence, it cannot
be said that the evidence of the complainant has been corroborated
by the panch witness in material particulars. In fact, the evidence
of the complainant does not make out any case of demand by the
appellant, whereas it is the evidence of the panch witness which
makes out a case of demand. In the circumstances, it cannot be said
that the discrepancies about the evidences of the two witnesses are
minor discrepancies which can be ignored. This infirmity in the
prosecution case goes to the root of the matter and strikes a fatal
blow to the prosecution case.
Insofar
as the aspect of acceptance is concerned, the complainant has stated
that he had given the currency notes to the appellant who took them
with his right hand and put them in his pocket. It is neither the
case of the complainant nor of the panch witness that the appellant
had counted the notes on the same being given to him. However, the
ultra violet lamp experiment shows that signs of anthracene were
found on the fingers and palms of both the hands of the appellant.
Moreover, from the evidence of the witnesses it has come on record
that the currency notes were not taken out of the pocket of the
appellant on the spot but only after they went back to the Bank for
the purpose of carrying out the ultraviolet lamp experiment. It has
also come on record that no marking had been made on the pocket of
the appellant to indicate the signs of anthracene nor was the same
signed by the Investigating Officer or the panchas. It has been
contended on behalf of the prosecution that the marked currency
notes were found from the pocket of the accused as is evident from
the fact that on the anthracene powder test being carried out with
the ultraviolet lamp, powder was found on the bush shirt pocket as
well as on the notes of the accused, a presumption about the
acceptance of money should be raised. Such a submission cannot be
countenanced when there is no evidence worth the name regarding
initial passing of the currency notes from the side of the
complainant to the side of the accused accompanied by conversation
in this behalf. In these circumstances, it would be hazardous to
record a finding with regard to acceptance, simply because on the
evidence of the complainant, the panch and the PSI, it emerges that
from the bush shirt pocket of the accused, the said notes were found
and that on the test being carried, the hands of the accused and his
bush shirt pocket revealed presence of the anthracene powder. In
such a case, it would be unsafe to rely on the oral evidence of the
three witnesses in this connection when there is a missing link with
regard to the initial demand, as well as the demand prior to
acceptance, when the notes are alleged to have passed from the side
of the complainant to the side of the accused. Thus, considering the
aforesaid evidence in the light of the conflicting versions as
regards demand prior to acceptance, it cannot be stated that the
prosecution has established acceptance of illegal gratification
beyond reasonable doubt.
In
the light of the evidence which has come on record, it cannot be
said that there is any cogent, reliable and unimpeachable evidence
establishing that the appellant-convict had received from the
complainant the amount of Rs.400/- as and by way of illegal
gratification. The question of presumption, therefore, will not
arise in the present case. In the circumstances, it is not necessary
to enter into a discussion as to whether the appellant has
successfully rebutted the case of the prosecution. It would be
unsafe and not prudent in the facts and circumstances of this case
to record a finding of demand and acceptance solely on the evidence
of the panch witness when it is not even the case of the complainant
that the appellant had demanded any money from him.
Insofar
as the contention regarding the panchas not being independent
panchas as they were known to the Investigating Officer the same
does not merit acceptance when considered in the light of the
decision of the apex court in the case of State of U.P. v.
Zakaullah (supra) wherein it has been held thus:
10.
The necessity for independent witness in cases involving police
raid or police search is incorporated in the statute not for the
purpose of helping the indicated person to bypass the evidence of
those panch witnesses who have had some acquaintance with the police
or officers conducting the search at some time or the other.
Acquaintance with the police by itself would not destroy a man s
independent outlook. In a society where police involvement is a
regular phenomenon many people would get acquainted with the police.
But as long as they are not dependent on the police for their living
or liberty or for any other matter, it cannot be said that those are
not independent persons. If the police in order to carry out official
duties, have sought the help of any other person he would not forfeit
his independent character by giving help to police action. The
requirement to have independent witness to corroborate the evidence
of the police is to be viewed from a realistic angle. Every citizen
of India must be presumed to be an independent person until it is
proved that he was a dependant of the police or other officials for
any purpose whatsoever. [Hazari Lal v. State
(Delhi Admn.).]
Insofar
as the challenge to the validity of the sanction order is concerned
the same must also fail, inasmuch as the sanctioning authority has
been examined as a witness and he has categorically deposed that he
had passed the order granting sanction after being satisfied with
the facts of the case. In his cross examination, nothing has been
elicited to impeach the credibility of the said witness.
In
the light of the aforesaid discussion, in the opinion of this Court,
though the facts of the case give rise to grave suspicion against
the appellant, the prosecution has failed to establish the guilt of
the appellant beyond reasonable doubt. In the circumstances, the
appeal must succeed and is accordingly allowed. The impugned order
dated 30th April, 1993 of conviction and sentence made by the
learned Special Judge, Court No.3, Ahmedabad in Special Case No.32
of 1986, is set aside and the appellant is acquitted.
[HARSHA
DEVANI, J.]
parmar*
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