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CR.A/514/1999 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 514 of 1999
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 ?
=========================================================
DR.
HARSHADRAI PRANJIVAN MEHTA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KB ANANDJIWALA for
Appellant(s) : 1,
MR HL JANI Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 02/08/2011
CAV
JUDGMENT
1. The
present appellant has preferred this appeal under sec. 374(2) of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 26.5.1999 passed by the learned
Special Judge, Mehsana, in Special Case (ACB) No. 15/1992, whereby,
the learned Judge has convicted the appellant under sec. 7 of the
Prevention of Corruption Act and sentenced to undergo R/I for 2 ½
years and to pay a fine of Rs.10,000/- in default, to undergo
further R/I for six months. The appellant is also convicted under
sec.13(2) of the Prevention of Corruption Act and sentenced to
undergo R/I for a period of 3 ½ years and to pay a fine of
Rs. 14000/-, in default, to undergo further R/I for eight months,
which is impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
3. The
appellant-accused was elected member of Nagarpalika since 1988 and he
was declared elected vide Ex. 52 by the Collector. The accused was
also discharging his duties as the Chairman of Town Planning
Committee. One Purshottambhai C. Patel – PW-2 Ex. 25, who is the head
of Town Planning Office used to prepare plans/map of Town Planning
and Development of Mehsana city and Banaskantha district. The plans
of Mehsana town were prepared and they were under implementation and
after every 10 years such plans are to be revised. The revised plans
were also prepared and the scheme drawn by Purshottambhai was handed
over to the Nagarpalika by addressing a letter to the President of
Nagarpalika advising the President to follow the necessary procedure
as per Sec. 9 of the Act by sending a copy to the Government, and as
per sec. 13 by showing the notification and calling for the
objections within two months and thereafter to finalise the proposal.
As advised by Purshottmabhai Patel, the objections were called for.
After the objections were received, the committee meeting was held,
headed by the appellant-accused being the Chairman. All the committee
members thought over the objections and after giving sufficient
opportunity to the affected persons and after hearing and considering
their representations and objections, rejected the objections.
Necessary resolutions were passed vide ex. 74 dated 3.2.1989 by the
Town Planning Committee. So far as the procedure is concerned, the
Town Planning Committee (TPC) had accepted almost all
proposals/opinions of the town planning officer and they were in
agreement. The final authority to take final decision on development
plan is the General Body of Nagarpalika. The decision of the TPC is
not the final decision, more or less no individual member is
authorised to take the final decision. Therefore, the final authority
is the General Body of the Nagarpalika and not the TPC. On 22.6.1989
vide Resolution No. 22, Ex. 77, the TPC got extension to submit
plans to the Government from 30.6.1989 to 31.12.1989. The resolution
was passed as per sec. 9(1) of the Town Planning Act, vide Ex. 50 on
27.12.1990. The same was published in the Government Gazette Ex. 47
on page-667, calling for the objections. On 19.2.1991, the owners of
survey No. 1685 and 1686 gave their objections vide Ex. 66 to the
President of Mehsana Nagarpalika. The same is mentioned in the
objection register vide Ex. 75 and 56. On 21.2.1991 Ex. 66, the
objection application was registered in Inward Register at Sr. No.
3852 vide Ex. 48. On 8.5.1991, the TPC was constituted consisting of
six members for the period during 8.5.1991 to 7.5.1992. The accused
was appointed as the Chairman. The meeting of the TPC was held on
30.5.1991 at 1.00p.m., in that meeting, the objection applications
were rejected and the resolutions were passed accordingly. On
30.7.1991, the General Meeting of the Nagarpalika was held and vide
Resolution No. 154 Ex. 49 it was decided to produce the revised plan
after necessary modification by the TPC. On 8.8.1991, a request was
made to Nagarpalika to take appropriate action. Thereafter, the
meeting was called on 29.10.1991.
4. So
far as the complainant is concerned, he was holding the plot bearing
S. No. 1684 admeasuring about 1 Hector 8 Are 75 mtr. Out of the said
survey number, 90 Are and 38 mtr. was belonging to the father of the
complainant viz. Jethabhai Madhubhai, rest of the field admeasuring
90 are and 37 mtr. was belonging to his maternal uncle Kanji Vaghji.
It is further the case that for going to the field bearing S. no.
1684, a way was proposed from s. No. 1685 and 1686 in a Plan which
was prepared before about 4 years from 25.10.1991. The said plan was
accepted by the Nagarpalika and it was implemented. It is alleged
that the accused, who was the then Chairman of the TPC and member of
Nagarpalika, told the complainant that the objections have been
submitted and he assured the complainant that he would make the way
permanently, after filing the said objection applications, but for
that work, Rs. 1,50,000/- would be required to be paid. This talk had
taken place before about one month prior to 21.10.1991, as alleged in
the complaint. At that time, the complainant was called at the
dispensary of the accused and, as alleged, such talk had taken place.
The deal was ultimately settled at Rs 1.00 lakh. It was also agreed
to make payment of Rs. 1.00 lakh in 2/3 installments as the
complainant was not having sufficient arrangement for the same. It is
alleged that the accused was often demanding the amount from the
complainant.
5. On
25.10.1991, at about 8.00 or 8.30pm, the accused came to the
residence of the complainant and informed the complainant that his
work was being done and as per the agreement he had not paid the
amount, that was not proper and told the complainant to make payment
on that very day otherwise he would spoil his work. Thereupon, as
alleged, the complainant told the accused that it would not be
possible for him to make necessary arrangement and therefore, he told
the accused that he would make the payment in installment as early as
possible. Thereupon, it is alleged that the accused told the
complainant to make payment in installment of Rs. 25,000/-.
Thereupon, the complainant told the accused that he would make some
arrangement by evening and the accused told that he would come to
receive the amount at about 4 or 5 pm on 25.10.1991 and told him to
make arrangement of Rs. 25,000/-.
6. Thereafter,
the complaint was filed before PI ACB and panchnama of first part was
completed and the trap was arranged and the accused was trapped, as
stated above, accepting the amount of Rs. 25,000/-. Thereafter,
necessary second panchmama was also prepared in the presence of
panchas and statements of witnesses were recorded and on completion
of investigation, the charge-sheet was filed in the Court, which was
given number as Special (ACB) Case No. 15/1992.
7. Thereafter,
the charge was framed at Ex. 29 against the appellant. The appellant
– accused has pleaded not guilty and claimed to be tried.
8. In
order to bring the home the charge levelled against the appellant-
accused, the prosecution has examined the following witnesses:
PW-1
Ganeshbhai Jethabhai Ex. 35
PW-2
Parsottambhai C. Patel Ex. 55
PW-3
Mahesh Pandha Ex. 53
PW-4
PI Parmar,I.O., Ex. 59
PW-5
Kokilaben W/o the complainant Ex 70
PW-6
Navnitbhai I Patel Ex. 73
9. The
prosecution has also produced, in all, 31 documentary evidences, as
mentioned in the impugned judgment, before the trial Court.
10. Thereafter,
after examining the witnesses, further statement of the
appellant-accused under sec. 313 of CrPC was recorded in which the
appellant-accused has denied the case of the prosecution.
11. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Judge vide impugned judgment and order
dated 26.5.199 held the appellant – accused guilty to the
charge levelled against him under sec. 7 and 13(2) of the Prevention
of Corruption Act and convicted and sentenced the appellant accused,
as stated above.
12. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Special Judge, Mehsana,
the present appellant has preferred this appeal.
13. Heard
Mr. KB Anandjiwala learned advocate for the appellant and Mr HL Jani
learned APP for the respondent-State.
14. Mr
Anandjiwala has read the charge, oral evidence of the witnesses as
well as the documentary evidence and vehemently argued that on the
face of the judgment, it is proved beyond reasonable doubt that the
learned Judge has committed grave error and the judgment and order of
the learned Judge is not proper, legal and unwarranted on the facts
and circumstances of the case. Mr. Anandjiwala has argued that the
learned Judge has not properly construed and appreciated the
sanction order passed by the Director of Municipality. He has also
contended that such sanction is non-application of mind. He has also
contended that from the evidence, it appears that the Sanctioning
Authority has not considered all the investigation papers which were
placed before him. He has also read the papers and vehemently argued
that the statement of the appellant-accused was the part of the
investigation papers and his statement was recorded by Police
Inspector soon after the trap. Mr Anandjiwala has further contended
that had it been taken into consideration by the Sanctioning
Authority, he would have not passed the order for prosecution as the
same was disclosing that the amount was towards the sale proceeds of
the shares which the complainant wanted to purchase, and therefore,
the amount was not towards the illegal gratification but the same was
towards the sale proceeds of the sale of shares. He has further
contended that so far as doing of business in the share is not
prohibited by a public servant. He submitted that the present
appellant is practicing doctor and, therefore, there is no bar in
doing the business in shares. He has also contended that the
sanction order is against the provisions of law and when it is
established beyond reasonable doubt that the sanction is given
without application of mind, then, it is fatal to the prosecution
case. Mr. Anandjiwala, has contended that from the contents of the
complaint, the prosecution has failed to prove its case beyond
reasonable doubt. He has read Ex. 29 charge and argued that it is the
allegation of the prosecution that demand was made by the present
appellant of Rs. 1,50,000/-, and later on, it was decided to accept
Rs. 1 lakh and the present appellant was agreed to accept that
amount. But, from the oral version of the witness, it is the duty of
the prosecution to prove its case beyond reasonable doubt. Mr.
Anandjiwala has read the oral evidence of PW-1 Ganeshbhai Jethabhai
Panch No. 1, Ex. 35 and vehemently argued that in his evidence it is
admitted by this witness that at 4.00 O’clock, when this witness and
complainant were sitting in the room, at that time, the present
appellant came there and complainant has produced one file and shown
it to the present appellant and asked him that what about his work.
Then, the present appellant told him that his work will be done.
Thereafter, the complainant asked the present appellant that what he
will take. Then, in connection of that question, the present
appellant had never replied anything. Mr. Ananadjiwala has also
contended, from the oral evidence of this panch witness, who is
independent witness, that through the evidence of this witness also,
the demand is not proved beyond reasonable doubt. He has also
contended that even from the panchnama also, it is specifically
explained that complainant has asked to the present appellant that
“Sir, how much will be taken”, and in reply, the present
appellant never said anything in connection of that suggestion asked
by the complainant in the presence of panch witness no. 1 and at that
event, the present appellant was looking at the face of complainant
and panch no. 1. He has contended that even from the contents of
panchnama, the prosecution has failed to prove that the demand was
made by the present appellant from the complainant. Mr Anandjiwala
has read the oral evidence of PW-3 Mahesh Pandha Panch no. 2, Ex. 53
and argued that from the oral evidence of this witness, the demand is
not proved beyond reasonable doubt. Mr Anandjiwala has also argued
that the complainant is not examined by the prosecution due to his
death. Mr. Anandjiwala has argued that wife of complainant PW-5
Kokilaben Ex. 70 has been examined by the prosecution, who has
deposed that her husband told her that Mehta Saheb is demanding money
of Rs. 25,000/- but in light of this evidence, Mr Anandjiwala has
read the oral evidence of PW-4 Police Inspector Mr Parmar, I.O., Ex.
59 and contended that at para-30, it is admitted by the I.O. that
PW-5 Kokilaen has never stated before him that her husband has told
her that for the purpose of way of the land, Mehta Saheb is demanding
Rs. 25,000/- as bribe amount or illegal gratification. Mr Anandjiwala
has read the explanation which is given in writing by the present
appellant during the recording of his statement under sec. 313 of
CrPC and contended that it is explained by the present
appellant-accused that there were always transactions between the
present appellant and complainant for the purpose of sale and
purchase of shares and as per the telephonic talk with the
complainant, when he called him at his residence for the share of
Narmada Cement, that amount was given to him just for the purpose of
shares and he was trapped by the Trapping Officer in connection of
the said offence. He has also contended that this is not an
explanation which can be considered that it is made by the appellant
after-thought. He has argued that prima-facie, when the demand is
not proved beyond reasonable doubt, then the question regarding the
acceptance cannot arise. Mr Anandjiwala has also contended that the
present appellant is a municipal councillor and therefore, is not
covered within the meaning of public servant. In that view of the
matter, Mr. Anandjiwala has contended that the impugned judgment and
order of conviction and sentence passed by the learned Special Judge
deserves to be quashed and set aside.
15. As
against this, learned APP Mr. HL Jani appearing for the State has
vehemently argued against the submissions of learned advocate Mr.
Anandjiwala for the appellant, and contended that it appears from the
oral evidence of witnesses that the sanction which was given by the
sanctioning authority was given after considering all the
investigation papers and after applying mind. Mr. Jani learned APP
has also contended that when prima facie, it is established beyond
reasonable doubt that the sanction given by the sanctioning
authority, after applying mind, then no question would arise that the
sanction is illegal. Mr. HL Jani learned APP, in reply to the
contention raised by Mr. Anandjiwala that the present appellant is
not a public servant, has contended that as per the provisions of
law, municipal councillor is covered within the meaning of public
servant. As against this, Mr. Ajandjiwala has argued that so far as
special case under the Prevention of Corruption Act is concerned,
the remuneration of the present appellant is not proved beyond
reasonable doubt. Mr Anandjiwala has also contended that in the
definition of public servant, municipal councilor cannot be
considered as a public servant. Mr. Jani learned APP has relied upon
the decision of Full Bench of this Court, in the case of Mustaq
Ahmed Hasanbhai Mansuri vs. V.C. Trivedi, reported in 2003(1) GLH 572
and the decision of this Court in the case of Bharatbhai R.
Bhavsar vs. Director of Municipalities and others, reported in
2008(2) GLH 752. Mr Jani has also read section 73 of the Gujarat
Municipalities Act, 1963, which reads as under:
73.
Councillors, etc., to be deemed public servants:- (1) Every
municipal councillor, officer or servant and every lessee of the levy
of any municipal tax, and every servant or other person employed by
any such lessee shall be deemed to be a public servant within the
meaning of section 21 of the Indian Penal Code (XLV of 1860).
(2)
The word “Government” in the definition of “legal
remuneration” in section 161 of that Code shall, for purposes
of sub-section (1) of this section, be deemed to include a
municipality.
Mr.
Jani also relied upon section 482 of the Bombay Provincial Municipal
Corporation Act, 1949, which reads as under:
482.
Councillors, etc. to be deemed to be public servants.- (1) The
Commissioner and the Transport Manager and every councillor and every
member of the Transport Committee who is not a councillor and every
municipal officer or servant appointed under this Act, and every
contractor or agent for the collection of any municipal tax and every
servant or other person employed by any such contractor or agent
shall be deemed to be a public servant within the meaning of section
21 of the Indian Penal Code (45 of 1860).
(2)
For the purposes of sub-section (1) the words “Government”
in the definition of “legal remuneration” in section 161
of the Indian Penal Code (45 of 1860) shall be deemed to include the
Corporation.”
16. Mr.
Jani has also read sec. 130 and 135 of the BPMC Act, 1949 and section
21 of IPC and contended that in light of the provisions of sec. 73 of
the Gujarat Municipalities Act, the ingredients of sec. 21 of IPC is
also considered and present municipal councillors, who are getting
honorarium from the Local Bodies, like, Nagarpalika or Municipal
Corporation, it can be considered that they are getting legal
remuneration. Mr. Jani has also contended that the complainant is not
examined but panch no. 1 is examined and money was given to the
appellant-accused and when acceptance is proved, the demand is
followed by the acceptance. Proof of Notes in panchnama is also
tallied. Panch No. 2 has also supported the case of the prosecution
and complaint is also exhibited. He has contended that the present
appellant has misused his position of public servant and that issue
is also not challenged by the present appellant. He has also
contended that as per the judgment of the Division Bench of this
Court, when the complainant and panch turned hostile, even though the
oral evidence of Panch no. 2 and Trapping Officer are required to be
considered and circumstantial evidence is also required to be
considered. The Division Bench of this Court in the decision reported
in GLR 1996(3) 620, while considering the said question, has
quashed and set aside the acquittal and appellant of that case was
convicted. In that view of the matter, Mr. Jani has contended that
the impugned judgment and order of conviction and sentence passed by
the learned Special Judge is just, proper and legal, the same
deserves to be confirmed.
17. I
have gone through the oral as well as documentary evidence produced
on the record. I have read the oral evidence of prosecution witness
and also perused the charge framed against the appellant. From the
evidence of the case is concerned, it is true that in this case, the
complainant is not examined by the prosecution but it is the say of
the learned APP that the oral evidence of panch is required to be
considered in the light of the complaint given by the complainant. In
the present case, I have perused the contents of the complaint and
considered the same. It is established beyond reasonable doubt that
at the event when the present appellant came into the room and took
place on the sofa in the presence of panch and when complainant had
asked to the appellant that how much to be paid, to which, appellant
had never said anything and it is also proved that in the presence of
panch, no demand was made by the present appellant from the
complainant. I have perused the contents of panchnama and from the
contents of panchnama, it appears that no demand is made by the
present appellant from the complainant. Even panch is also unable to
say that the appellant has made demand for illegal gratification. The
probable defence is established by the present appellant beyond
reasonable doubt. In the decision of the Hon’ble Supreme Court in the
case of Banarsi Das vs. State of Haryana, reported in 2010 SC
1589, wherein, Hon’ble Supreme Court has observed that mere
proof of recovery of bribe money from accused not sufficient to prove
the offence. I have also perused the oral as well as documentary
evidence produced before me. It is also proved beyond reasonable
doubt that the prosecution has failed to prove the demand which is
alleged to have been made by the present appellant-accused. It is
true that the trap amount was recovered from the possession of the
present appellant, but the defence made by the appellant is required
to be considered whether it is a probable defence or not. The
appellant-accused in his statement recorded under section 313 of
CrPC, has explained that the complainant is a regular visitor and
there was some business transactions of sale and purchase of shares
and from the oral evidence of wife of the complainant also, it is
proved beyond reasonable doubt that the probable defence made by the
appellant is required to be considered and accepted. In that view of
the matter, I am of the opinion that the prosecution has not proved
the demand which is alleged to have been made by the present
appellant and when the demand is not proved beyond reasonable doubt,
then simply acceptance is not sufficient to convict the appellant. I
have also perused the meaning of criminal misconduct of public
servant. It is true that the appellant is a public servant, yet,
looking to the evidence produced before this Court, I am of the
opinion that the defence made by the present appellant in his
statement recorded under section 313 of CrPC cannot be said to be
made an afterthought. In that view of the matter, I am of the
opinion that impugned judgment and order of conviction and sentence
passed by the learned Special Judge requires to be quashed and set
aside.
18. In
the result, this appeal is allowed. The impugned judgment and order
of conviction and sentence dated 26.5.1999 passed by the learned
Special Judge, Mehsana in Special Case (ACB) No. 15/1992 is hereby
quashed and set aside. Bail bond stands cancelled. R & P to be
sent back to the trial court forthwith.
[Z.K.SAIYED,
J.]
mandora/
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