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CR.A/560/1997 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 560 of 1997
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 ?
=========================================
CHIMANLAL
MAVJIBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
KB ANANDJIWALA for
Appellant(s) : 1,
MR RC KODEKAR, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/04/2011
CAV
JUDGMENT
By
way of present appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, the appellant-original accused has prayed
to quash and set aside the judgment and order of conviction and
sentence dated 21st May, 1997 passed by the learned
Special Judge, Kutch-Bhuj, in Special Case No.02 of 1990 whereby the
learned 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 simple imprisonment for a period of
one-and-half-year, and also imposed fine of Rs.500/-, and in default
of payment of fine; sentenced him to undergo simple imprisonment for
a further period of three months. The appellant was also convicted
for the offence punishable under Section 13(1)(d)(i) and
13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption
Act, 1988 and was sentenced to undergo simple imprisonment for a
period of one year, and fine of Rs.400/-, and in default of payment
of fine; sentenced to undergo simple imprisonment for a further
period of two months.
As
per the case of the prosecution, the appellant was serving as
Superintending Engineer in the Gujarat Water Supply and Sewerage
Board since February, 1988 and since then he was discharging his
duties at Kutch. As per the case of the prosecution, the complainant
had allotted contract work of Rudramata Operator Quarter and A-one
Quarter near Inspection Bungalow at Bhuj in the year 1987. It is
also the case of the original complainant that thereafter he was
assigned extra work of wire-fencing of Rudramata Operator and A-one
Quarters. The original complainant did the said work with
expectation of approval of the same. It is the case of the
prosecution that the original complainant has received the bill
amount of contract work assigned to him; however, the bill amount of
extra work done by him was not paid to him and according to the bill
amount, the complainant had done total work of Rs.78,700.76 paisa.
As per the case of the prosecution, the said bill for extra work
were sent to the office of the Superintending Engineer by the
Executive Engineer for sanction and the same were pending in the
office of the Superintending Engineer. It is the case of the
prosecution that on 03rd May, 1989 when the original
complainant visited the office of the Superintending Engineer and
contacted him with regard to his pending bills, the present
appellant had demanded Rs.500/- by way of illegal gratification from
him and he has paid the said amount, which was accepted by the
appellant. It is further alleged by the original complainant that
on 06th July, 1989 in the afternoon, he had gone to the
office of the Superintending Engineer and contacted the appellant
and requested him to sanction the pending bill. At that point of
time, as alleged, the appellant told the complainant that he should
come to him on Friday in the afternoon, and if the bills are to be
passed, then he would have to make the payment of Rs.500/-. At that
time, as alleged by the original complainant, he told the appellant
that he would be coming on 07th July, 1989, i.e. on
Friday, in the afternoon with Rs.500/- and left the office.
Thereafter,
as the complainant was not willing to make the payment, he
approached the ACB Office on 07th
July, 1989 and lodged his FIR before the police. 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, i.e. five notes
of Rs.100/- each. Thereafter, the complainant, panchs and members of
the raiding party proceeded towards the office of the appellant in
two rickshaw. Thereafter, the complainant and the panch No.1 went
inside the chamber of the appellant. The appellant asked the
complainant as to for what purpose he had come, to which the
complainant replied that he had come for the bills of extra work
being done by him. It is also the case of the complainant that at
that time, as alleged, the appellant told the complainant that if
the bills are to be sanctioned, it would cost Rs.1,200/-. Therefore,
the complainant had given the cover containing Rs.500/- and told
that the remaining amount of Rs.700/- would be paid after passing of
the bill. Thereupon the appellant told that his bills would be
passed and the same would be sent. Thereafter, the complainant came
outside the room and gave signal to the members of raiding party.
Thereafter, the amount was recovered from the pocket of the pant of
the appellant in a cover. The said cover was taken out and from that
cover, amount of Rs.500/- was recovered. Thereafter the second part
of the panchnama was drawn.
Thereafter,
the Investigating Officer lodged FIR, registered the offence and
recorded the statement of the complainant. Thereafter, the
Investigating Officer carried out investigation and recorded
statements of various persons. Thereafter, after
obtaining sanction, charge-sheet came to be filed against the
appellant-accused.
Thereafter,
charge at Exhibit 9 was framed against the appellant for the
offences punishable under Section 7, 13(1)(d)(i) and (ii) read with
Section 13(2) of the Prevention of Corruption Act. The
appellant-accused 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 nine witnesses and
also produced documentary evidence in support of its case.
Thereafter,
after examining the witnesses, further statement of the
appellant-accused under Section 313 of the Code of Criminal
Procedure, 1973 was recorded.
After
considering the oral as well as documentary evidence and after
hearing the parties, the learned trial Judge vide impugned judgment
and order dated 21st
May, 1997 held the appellant-accused guilty to the charges
levelled against him as mentioned aforesaid.
Being
aggrieved by and dissatisfied with the impugned judgment and order
of conviction and sentence passed by the learned Special Judge,
Kheda-Bhuj, the appellant has preferred the present appeal.
Heard
Mr.K.B. Anandjiwala, leaned counsel for the appellant and Mr.R.C.
Kodekar, learned Additional Public Prosecutor for the
respondent-State.
Mr.Anandjiwala,
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 9 and
contended that demand of Rs.1,200/- is not proved. He has read the
oral evidence of PW No.1-complainant and contended that from the
cross-examination of the said witness, demand is not established. He
has also contended that the second demand and recovery is also not
proved beyond reasonable doubt. He has also contended that the
contents of Exhibit 9-Charge is not proved. Therefore, corroboration
of accomplice is necessary for the prosecution and from the oral
evidence of PW No.2, no corroboration is proved. He has further read
the oral evidence of the complainant and contended that there are
sufficient contradictions in the oral evidence and FIR lodged by the
complainant. The learned trial Judge has not considered the
contradiction between the oral evidence and FIR lodged by him. He
has also contended that even there are sufficient contradiction
between the oral evidence of PW No.1 and PW No.2. He
has also contended that as per the evidence of the prosecution,
amount was given in the cover and from the oral version of the
prosecution, prosecution has failed to prove the said story of the
cover from the PW No.1. He has also contended that doubt is created
in favour of the present appellant. He has also contended that from
the oral version of the witness, story of the charge regarding
demand of Rs.1,200/- is not proved and even the said disputed cover
is also not recovered from the appellant, but it is recovered from
the possession of the complainant. He has also read the oral
evidence of PW No.1 regarding conversation and contended that no
demand was made by the appellant of Rs.500/-. Even PW No.1 is also
not on the same footing. The learned trial Judge has not considered
the said contradiction in the evidence of PW No.1 and No.2.
Mr.Anandjiwala has also contended that the sanction given by the
Authority is without application of mind. He has contended that the
Board did not pass any Resolution granting sanction to prosecute the
accused, but left it to the Member Secretary to act as per the
Rules. The Member Secretary has no powers to grant sanction and
since the services of the accused have been transferred to the said
Board, the Board has to decide about the proposed sanction for
prosecution. The learned trial Judge has erred in not appreciating
this aspect of granting sanction and has passed absolutely unjust
and illegal order. Thus, when sanction itself is illegal, learned
trial Judge has erred in convicting the appellant. He has also
contended that provision
of Section 77(2)(b) as well as Section 11 and 14 of the Gujarat
Water Supply and Sewerage Board is required to be considered. He has
also relied upon the judgment reported in 1980 CLR 877 and contended
that sanction, which is given by the Authority is without power and
therefore also, present appeal is required to be allowed.
Mr.Anandjiwala
has also contended that the prosecution has failed to establish the
demand beyond reasonable doubt. Thus, when demand is not
established, then no question of acceptance would arise. He has also
contended that the present appellant is innocent and he has falsely
involved in the present case. Just to take revenge, the complainant
has filed false complaint against the appellant. He, 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 acquitted from the charges levelled against him.
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
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 panchas are supported the case of
the prosecution. He has read Exhibit 29-Sanction Order and contended
that the sanction is proper in eye of law and that act of the Board
itself shows that proper power is given and it is proved beyond
reasonable doubt. He has also read the oral evidence and contended
that from the oral evidence of witnesses, demand and acceptance is
proved beyond reasonable doubt. Mr.Kodekar has relied upon the
judgment reported at 2010(1) GLH 597 and contended that even for the
sanction, if there has been error or omission, it is not proper to
set aside the conviction. If there may be some finding that sanction
granted in a mechanical manner, is not sufficient to set aside the
conviction. Mr.Kodekar has contended that during the trial also,
appellant has never made any attempt to say that some prejudice is
caused because of sanction granted by the Authority. He has prayed
that presumption under Section 20 of the Act is required to be drawn
against the present appellant. The appellant has failed to rebut the
said presumption under Section 20 of the Act. He has also explained
presence of anthracene powder on the trap amount recovered from his
possession. 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 from the
oral evidence of PW No.1 at Exhibit 15, I have found that demand is
proved beyond reasonable doubt. I have also perused
cross-examination of the complainant and from the cross-examination,
acceptance of bribe money and recovery of the bribe money from the
possession of the appellant is proved beyond reasonable doubt. Even
from the cross-examination of the said witness, appellant has failed
to prove his defence. From the perusal of the oral evidence of PW
No.2 at Exhibit 19, oral version of this witness has proved the
contents of the panchnama. Even demand and recovery is also proved
beyond reasonable doubt. It is true that there were some minor
contradictions in the evidence of PW No.1 and PW No.2, but the base
of the present case is depending upon the evidence of demand,
acceptance and recovery and when it is proved from the oral evidence
of the independent witness, then defence version cannot be
entertained. I have found sufficient evidence to connect the
appellant-accused with the charge levelled against him. So far as
sanction is concerned, I have perused oral evidence of PW No.3 at
Exhibit 28 and also perused provisions of Gujarat Water Supply and
Sewerage Board and it appears from the perusal of the said provision
that sanction, which is given by the Authority is as per the
provision of law, proper and acceptable. I have also perused the
oral evidence of Trapping Officer. He has supported the case of the
prosecution. I have not found anything to accept the defence version
of the appellant. The learned Special Judge has passed the order
after appreciating all the aspects of the matter. The appellant has
failed to prove its case beyond reasonable doubt.
As
per above observation, I found that demand of illegal gratification
made by the appellant-accused is proved beyond reasonable doubt
through oral evidence of complainant and panch witness as well as
through documentary evidence produced on record. Even the recovery
of trap amount from the possession of the appellant-accused is also
proved beyond reasonable doubt. The presence of anthracene powder is
also found from the pocket of the present appellant and the
appellant has failed to explain how anthracene powder is found from
his pocket. As per the 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
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 dismissed. The
judgment and order of conviction and sentence dated 21st
May, 1997 passed by the learned Special Judge, Kutch-Bhuj, in
Special Case No.02 of 1990, is hereby confirmed. 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)
Anup
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