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CR.A/583/1998 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 583 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 ?
=========================================
ARVINDBHAI
LALJIBHAI PANDYA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MS
SHRUSTI THULA FOR MR YN OZA for
Appellant(s) : 1,
MR RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/03/2011
CAV
JUDGMENT
By
way of present appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, the appellant-original accused has inter
alia payed to quash and set aside the judgment and order of
conviction and sentence dated 11th June 1998 passed by
the learned Special Judge, Bhavnagar, in Special Case No.03 of 1994
whereby the learned Judge was pleased to convict the appellant.
As
per the case of the prosecution, on 01st December 1993
the complainant had given written complaint to ACB Police Inspector,
Bhavnagar wherein he has stated that since last two months he is
working as Senior Clerk in the office of Deputy Executive Engineer,
Water Resources and Research Sub Division. Prior to that, the
complainant was working as Junior Clerk with Narmada Nigam at
Village Patdi, District Surendranagar. It is further the case of the
complainant that as his native is Bhavnagar, he had tried for his
transfer to Bhavnagar. Because of his efforts, he was transferred to
Palitana. He has further stated that Executive Engineer’s office is
situated at Multi Storied Building, Bhavnagar and Zonal Office is
situated at Rajkot. In the normal circumstances, transfer would be
effected by the Executive Engineer, but in the present case, as
there was a clear and vacant post at Palitana, transfer of the
complainant was effected by the Zonal Office directly. It is further
the case of the complainant that because of this, the Assistant
Office Superintendent (Division), i.e. the present appellant, called
the complainant and told the complainant that as to why without
taking any permission from him, the complainant had effected his
transfer and asked the complainant to make him happy. Thereafter,
after some conversation between the complainant and the present
appellant-accused, on 25th November 1993 the
appellant-accused demanded Rs.200/- from the complainant. At that
point of time, the complainant told the appellant-accused that he
will see in the next month after salary would be paid. Therefore,
the appellant-accused told the complainant that after the salary
would be made on 01st December 1993, till the evening
hours on that day, make it convenient to send Rs.200/- in his office
and thereafter I will see to it that you will be transferred to
Bhavnagar. It is the case of the complainant that he has tried to
convince the appellant-accused to reduce the amount, but as per the
case of the complainant, the appellant-accused was not convinced. It
is further the case of the complainant that thereafter also when he
went to the office, the appellant-accused again asked for Rs.200/-.
It is the case of the complainant that he does not want to given the
said amount to the appellant-accused, but under the compulsion, he
has to give this amount to the appellant-accused. Therefore, a
complaint to the said effect was given by the complainant.
It
is the case of the prosecution that complaint was lodged before the
ACB. Thereafter, the services
of two panchas were sought. The facts of the case were narrated to
them and thereafter the 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
anthrecene powder and the said currency notes, i.e. two notes of
Rs.100/- each, were put into the left pocket of the bush-shirt of
the complainant. Thereafter, the complainant, panchs and members of
the raiding party went to the office of the appellant-accused
situated at Multi Storied Building. Thereafter the complainant and
the panch No.1 went into the room of the appellant-accused and the
complainant seat on the chair lying there and the panch No.1 stood
near the table. Thereafter the complainant told the
appellant-accused that “as per the talk between us in the
afternoon, I am here.” Therefore, the appellant asked “have
you brought?”, to which the complainant replied in
affirmative. Thereafter, the complainant took out the smeared notes
using his right hand and handed it over to the appellant-accused.
The appellant has received the said notes by his right hand and put
it in the right pocket (backside) of his pent. Thereafter, the
appellant-accused told the complainant that he has already prepared
the transfer note and will place it for sanction and your work will
be done.
Thereafter,
the complainant came outside the office room and gave signal to the
members of raiding party. At that point of time, the panch No.1 was
standing near the table in the office room of the appellant-accused.
Thereafter, as the A.C.B. Inspector has given his identity, the
appellant-accused was shivering. Therefore, the Inspector told him
to sit as it is and told him not to touch anything. Thereafter the
Inspector asked the name, to which he replied that A.L. Pandya, Head
Clerk, Office of Executive Engineer, Water Resources and Research
Division, Bhavnagar. At that point of time, it was 19.00 hours.
Thereafter, when the A.C.B. Inspector asked the appellant-accused
about the bribe
amount of Rs.200/-, the appellant-accused took out the same from his
pent’s pocket. Thereafter, the Inspector told the panch No.1 to take
the said currency notes and when they matched the number of the said
notes, it matched with the numbers mentioned in the panchnama.
Thereafter, when the experiment of UV lamp was carried out, light
blue fluorescent marks were found on right hand finger as well as on
the pocket of his pent. Thereafter, after arranging for another pent
for the appellant-accused, pent wear by him was seized as muddamal.
Thereafter panchnama of office room of the appellant-accused was
drawn as well as the facts mentioned by the panch No.1 were also
mentioned in the panchnama. The panchnama was completed on 18.45
hours. Thereafter, after following necessary formalities, second
part of panchnama was drawn.
Thereafter,
the Investigating Officer recorded statements of various persons.
Thereafter,
FIR was lodged. Statements of the complainant were recorded. After
obtaining the sanction from the appropriate authority, charge-sheet
came to be filed before the Special Court, Bhavnagar.
Thereafter,
charge was framed against the appellant. The appellant-accused
has pleaded not guilty and claimed to be tried.
In
order to bring the home the charges levelled against the
appellant-accused, the prosecution has examined witnesses in support
of their case.
Thereafter,
after examining the witnesses, further statement of the
appellant-accused under Section 313 of the Code of Criminal
Procedure, 1973 was recorded in which the appellant-accused had
denied the case of the prosecution. The appellant-accused in his
further statement submitted that the complainant was residing
nearby. There was a talk between the complainant and accused
regarding marriage of complainant’s sister and son of the
appellant-accused, but as the same was refused by the appellant’s
son, therefore, there was animosity between the complainant and the
appellant-accused. The appellant-accused has also stated in his
further statement that prior to 20 to 25 days from the date of
incident, the appellant had given Rs.200/- to the complainant as
loan and when the appellant demanded back the said amount from the
complainant, the said illegal complaint was lodged.
After
considering the oral as well as documentary evidence and after
hearing the parties, the learned trial Judge vide impugned judgment
and order dated 11th
June 1998 held the appellant-accused guilty to the charges
levelled against him under Section 7 of the Prevention of Corruption
Act, 1988 and sentenced him to undergo rigorous imprisonment for a
period of six months and also imposed fine of Rs.02,000/-, and in
default of payment of fine, ordered to undergo rigorous imprisonment
for a further period of three months. The appellant-accused was also
held guilty 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 one year, and also imposed fine of Rs.02,000/-, and in
default of payment of fine, ordered to undergo rigorous imprisonment
for a period of three months. However, it was ordered that both the
sentences shall run concurrently.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge,
Bhavnagar, the appellant has preferred the present appeal.
Heard
Ms.Shrusti Thula, leaned counsel for the appellant and Mr.R.C.
Kodekar, learned Additional Public Prosecutor for the
respondent-State.
Ms.Thula,
learned counsel appearing for the appellant has contended that the
judgment and order passed by the learned trial Judge is illegal,
invalid and improper. She has also contended that the learned trial
Judge has not considered the case of the defence and evidence and
material produced on record. It is also contended by Ms.Thula that
the evidence of panch No.1 is not corroborating the facts of the
case and even the learned trial Judge has also believed the said
version of the panch No.1. She has also contended that the judgment
and order of the learned trial Judge is erroneous and contrary to
the evidence on record. She has also contended that the learned
trial Judge has failed to appreciate that there is animosity between
the appellant and the
complainant as the appellant has refused to get married his son with
the daughter of the complainant and therefore, the alleged trap was
managed by the complainant. It is also contended by the leaned
counsel for the appellant that when animosity is established and
proved beyond reasonable doubt and when the panch witness has failed
to prove the case of the complainant, the judgment and order of the
learned trial Judge is required to be quashed and set aside. She has
also contended that the learned Special Judge has failed to
appreciate that the appellant was working as Office Superintendent
and he has no authority to transfer any person and therefore, there
was no question of asking money for transfer by way of illegal
gratification. She has also contended that this was done only with
an intention to settle the score with him. Ms.Thula has also
contended that the appellant has given loan of Rs.200/- to the
complainant and the complainant came to return the said amount of
Rs.200/- and has taken undue advantage of the situation by saying
that this amount is to be paid as illegal gratification and thereby
the complainant has taken revenge to settle the old score of refusal
of the appellant for getting his son married with the sister of the
complainant. She has also contended that this aspect of the matter
ought to have been appreciated by the learned Special Judge and
benefit of doubt ought to have been given to the appellant. She has
also contended that the learned Special Judge has failed to take
into consideration the probable defence of the appellant. The
appellant is innocent
and he is falsely involved in the present case. She has also
contended that there are sufficient oral as well as documentary
evidence produced on record to say that there was animosity between
the appellant and the complainant. She has also contended that
conduct of the complainant is also required to be looked into. She
has also contended that the complainant is habitual complainant and
he is in habit of making complaints against his co-staff members.
She has also contended that the prosecution has failed to establish
the demand beyond reasonable doubt. Prosecution has failed to prove
demand through the evidence of panch Nos.1 and 2. Thus, when demand
is not established, then no question of acceptance would arise. When
the appellant has explained the probable defence in his statement
recorded under Section 313 of the Code of Criminal Procedure, it
cannot be said that the defence taken by the appellant is an
afterthought. Ms.Thula has also read Exhibit 19 – Sanction
Order and contended that the sanction is given without application
of mind. She has contended that the present appellant is innocent
and he has been falsely involved in the present case. Just to take
revenge, the complainant has filed false complaint against the
appellant. The learned Special Judge has failed to take into
consideration the probable defence of the appellant. She, therefore,
contended that the judgment and order of the learned Special Judge
is required to be quashed and set aside and the appellant is
required to be set at liberty. She has also read the oral evidence
of panch No.1.
As
against this, Mr.Kodekar, 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 read
the oral evidence of the complainant and contended that if there was
animosity between the complainant and the appellant, then it is not
possible that appellant would give the loan of Rs.200/- to the
complainant. He has contended that looking to the overall facts and
circumstances of the case, circumstantial evidence and evidence
produced on record, the order passed by the learned Special Judge is
absolutely just, proper and correct and is not required to be
interfered with. He has also contended that the evidence of the
panchs are supported the case of the prosecution. In presence of the
panch No.1, the appellant asked the complainant about the money and
in his presence, the complainant has given Rs.200/- to the
appellant. Thus, demand and acceptance is proved through the oral
evidence of the panch No.1. He, therefore, contended that the
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 that the
complainant and the appellant-accused were residing nearby and there
was some talk of marriage between the sister of the complainant and
son of the appellant, but due to some reason, the appellant refused
to get married his son with sister of the complainant. It also
appears that prior to the incident in question, the appellant had
given Rs.200/- to the complainant as loan. From the oral evidence of
the panch No.1, it is proved that the appellant has accepted
Rs.200/- from the complainant, but it is not accepted as a bribe
amount. It is accepted by the appellant as the complainant has to
pay Rs.200/- towards loan given to him. The panch No.1 does not know
the fact of loan given by the appellant to the complainant. Thus,
the question of demand as illegal gratification is not proved. From
the very beginning of the investigation, the appellant has given
probable defence, but the said defence was not investigated properly
by the Trapping Officer.
I
have gone through the impugned judgment and order passed by the
learned trial Judge and oral as well as documentary evidence
produced on the record. I have read the oral evidence of prosecution
witnesses and also perused the charge framed against the appellant.
I find that the probable defence made by the appellant is
trustworthy, reliable and acceptable. The learned Special Judge has
failed to consider this aspect of the matter and has passed the
order. The prosecution has failed to prove its case beyond
reasonable doubt. It also transpires from the papers that the
appellant-accused was working as Office Superintendent and he has no
authority to transfer any person. It is also transpired from the
papers that the complainant is a habitual complainant and he is in
habit of making complaints against his co-staff members.
It
is also required to be considered the fact that the defence was
taken at an early stage and it cannot be said as an afterthought.
The evidence of the defence cannot be ignored because defence of
accused person can legitimately be taken into consideration while
assessing the value of evidence and judging the guilt or innocence
of the accused. Defence can be inferred from the circumstances
appearing in the case. Thus, it clearly transpires that due to
animosity, the appellant is falsely involved in the case. Sanction
is also not legal and proper and hence, the appellant-accused
requires to be acquitted.
Hence,
in view of the foregoing reasons, present appeal is allowed. The
judgment and order of conviction and sentence dated 11th
June 1998 passed by the learned Special Judge, Bhavnagar, in Special
Case No.03 of 1994, is hereby quashed and set aside. Since the
appellant is on bail, no order in respect of setting him at liberty
is passed. The appellant is hereby acquitted from the charges
levelled against him. Fine, if paid, be refunded to the appellant.
Bail bond, if any, shall stands discharged. Record and Proceedings,
if any, be sent back to the trial Court forthwith.
(Z.
K. Saiyed, J)
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