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CR.A/1368/1999 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1368 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 ?
=========================================
FULACHAND
AMBALAL PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance
:
MR
KB ANANDJIWALA for Appellant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/10/2010
CAV
JUDGMENT
1. The
present appellant has preferred this Appeal under Section 374 of the
Code of Criminal Procedure against the judgment and order of
conviction and sentence dated 17.12.1999 passed by the learned
Special Judge, Court No.8, Ahmedabad, in Special Case No.16 of 1994,
whereby the learned Special Judge has convicted the appellant,
accused for the offence punishable under Section 7 of the Prevention
of Corruption Act and sentenced the appellant to undergo R.I. for
six months and to pay a fine of Rs.300/-, in default, to undergo R.I.
for 15 days. Learned Judge also convicted the appellant –
accused for the offence punishable under Section 13(2) of the
Prevention of Corruption Act and sentenced to suffer R.I. for one
year and pay a fine of Rs.300/-, in default, further R.I. for 15 days
for the offence punishable under Section 13(2) of the Prevention of
Corruption Act.
The
brief facts of the prosecution case is as under:
2. As
per the case of the prosecution, the complainant Kumari Uzma
Mohmadnasir Machiswala, is a practicing lawyer. It is alleged that
one M. Case No.62 of 1992 before Vejalpur Police Station against one
Ashwinkumar Krupasanker Dave and four others, was filed and they have
been arrested. Said Ashwinkumar engaged the complainant as his
advocate in the matter of bail. In the said case, the appellant –
accused was Assistant Public Prosecutor. On 20.7.1993, the
application for bail was kept for hearing before Metropolitan
Magistrate Court, Mirzapur and at about 1:00 p.m., the appellant
Assistant P.P. met the complainant and called her nearby Court room
and some conversation between them took place, wherein the appellant
told the complainant that if you want to get the accused released on
bail, then she (complainant) has to understand something. The
appellant – accused told the complainant that if you pay
Rs.500/- i.e. Rs.100/- per accused then appellant – accused
will not take objection. But as the complainant did not want to give
bribe and, therefore, she approached ACB and gave complaint. After
receipt of complaint against the appellant, panchas were called, trap
amount was given by the complainant and after following necessary
procedure, raid was carried out. Therefore, the complaint was
registered against the appellant – accused, after obtaining
necessary sanction for prosecution against the accused. After
completing due investigation, charge-sheet was submitted against the
accused.
3. The
charge was framed at Exhibit 25 and same was read over and explained
to the appellant – accused. Plea of the appellant was recorded
at Exhibit 26. He pleaded not guilty to the charge and claimed to be
tried. His reply about receiving of police paper was recorded.
4. The
statements of the witnesses were recorded, panchnama was drawn and
accused was arrested. The case was numbered as Special Case No.16 of
1994.
5.
To prove the case against the appellant, the prosecution has
produced documentary evidences and also examined three witnesses from
the prosecution side and also on behalf of defence side, three
witnesses have been examined.
6. Thereafter,
after examining the above referred witnesses, further statement of
the appellant – accused under Section 313 of the Code of
Criminal Procedure was recorded in which the appellant –
accused has denied the case of the prosecution.
7. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Special Judge, Court No.8, Ahmedabad in
Special Case No.16 of 1994 vide impugned order dated 17.12.1999 held
the appellant accused guilty to the charge levelled against him and
sentenced him as stated above.
8. Feeling
aggrieved and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Sessions Judge, the
present appellant has preferred this appeal.
9. Learned
advocate Mr. K.B. Anandjiwala, appearing on behalf of the appellant
submitted that there were several contradictions in the documentary
evidences produced by the prosecution and they are never proved and
even then the learned Special Judge held the appellant guilty for the
offence alleged against him. Therefore, the order impugned is
required to be quashed and set aside by allowing the appeal.
10. Learned
advocate Mr. Anandjiwala has contended that from the oral evidence of
P.W.1 complainant and P.W.2, Panch witness, it is established beyond
reasonable doubt that the evidence of both the witnesses are totally
contradictory. He also contended that the judgment and order passed
by the learned Special Judge is punitive in nature, illegal and
suffers from erroneous appreciation of law. The evidence against the
accused is divisible into two parts viz. the evidence prior to trap
and secondly the evidence after the trap. He further contended that
form the oral evidence of P.W.1, it appears that she is an advocate
and it is established beyond reasonable doubt from her
examination-in-chief at Exhibit 32 that the complainant was engaged
as lawyer of Ashwinbhai, who was arrested by the police for the
offence punishable under Section 498(A) of the Indian Penal Code. He
also contended that this complainant, P.W. 1 is an interested witness
because the said person Ashwinbhai is related to her senior Mr. Raval
and that was the goal of the complainant as well as her senior Mr.
Raval that Ashwinbhai, who is in custody of the police, should easily
be released on bail. Learned advocate also contended that first the
demand is not proved beyond reasonable doubt. He has read the oral
evidence of P.W.1 and contended that at the event of meeting with
present appellant – accused, there was no demand made by the
present appellant and sharing the common object with senior advocate
Mr. Raval, the said complaint was filed by the complainant.
He
also contended that from the oral evidence of the present
complainant, it is brought on record that on the day of trap in the
noon, the demand was made by the present accused, but the oral
evidence of the P.W.2, panch, is not corroborating with the evidence
of P.W.1 complainant. He has contended that the prosecution has not
produced any corroborative piece of evidence in connection with the
demand made by the appellant – accused, therefore, the prosecution
case should be considered as not proved beyond reasonable doubt. He
also contended that with regard to the aspect of second demand at
that time, when the present appellant accused was Assistant Public
Prosecutor in the lower Court and proceedings were going on, so the
question of second demand is not proved beyond reasonable doubt
before the Court. He has read over oral evidence of the panch witness
P.W. 2 and argued and the prosecution has totally failed to prove the
demand made by the appellant – accused. He also argued that the
demand which is in conflicting manner so the demand is not proved and
therefore, no question of conviction would arise. Only presumption
was raised by the learned trial Judge and based thereon has awarded
sentence upon the appellant – accused. He has read the
statement under Section 313 of Criminal Procedure Code also and
written statement submitted by the present appellant – accused.
He further submitted that the question of presumption would not arise
because sufficient explanation was given by the present appellant.
11. Learned
advocate Mr. Anandjiwala read over the oral evidence of the P.W.2
exhibit 40 para 2 from the middle part and contended that the talk
which took place between the accused and the complainant is the most
material talk to ascertain the nature of the offence committed by the
accused and that the said aspect is not established and when there is
conflicting evidence of two witnesses on this aspect, the case
against the accused has not been proved by the prosecution. There is
no direct evidence and therefore, prosecution has completely failed
to prove case against the appellant. He has also submitted that when
the P.W.2 was there even though he has not uttered any single word
regarding demand and therefore, there is contradiction is in
conversation qua the said demand and hence, the benefit of doubt is
required to be given to the present appellant. He has read defence of
the present appellant viz. from page 181 and argued that sufficient
probability is established by the present appellant accused before
learned Special Judge, but the learned Special Judge has not
considered that issue. He has also read the oral evidence of trapping
officer – P.W.3 and argued that when this witness had entered into
the room of the appellant accused, at that time, the trap amount was
lying on the floor and it was not in the knowledge of the trapping
officer that whether that trap amount was accepted by the said
appellant or not ?. He has contended that the object of the
complainant was only to see that the accused of that case Mr.
Ashwinbhai, who was related to the advocate Mr. Raval, who is senior
of the present complainant P.W.1 can easily come out from the
custody. He has argued that from the oral evidence of complainant
P.W.1 that during the talk regarding bail application of Ashwinbhai
at that time, no copy of the FIR was presented by the complaint and
even they have tried to argue that bail application. He has read the
oral evidence of defence witness and contended that the evidence is
helpful to the appellant No.1. From the contents of panchnama as well
as complaint, it is required to be considered that the P.W.1 and 2
who are the star witnesses of prosecution, their evidences are
totally not corroborated with each other and from cross-examination
of these witnesses, some contradictions are brought on record in the
version given by P.W.1. Therefore, the probability of the defence is
also established beyond reasonable doubt. When the defence of
appellant is such that said trap amount was inserted in the pocket of
the appellant without his knowledge and when he felt that something
was inserted in his pocket, he saw the currency notes, he threw away.
So the probability is required to be considered in favour of the
present appellant. He has argued that from the evidence of panch
witness No.2, that he has deposed that the panchnama was not prepared
by him and his signature was simply obtained. He, therefore,
submitted that from the oral evidence of P.W.2 also, the prosecution
has failed to prove its case beyond reasonable doubt and therefore,
so the probability raised form the oral evidence of the witnesses, is
required to be considered in favour of the appellant – accused.
Therefore, the judgment and order of conviction passed by the learned
Special Judge is required to be quashed and set aside.
12. Learned
APP Mr. H.L. Jani for the respondent – State has supported the
judgment of the trial Court and submitted that the charge is proved
by the evidence of P.W.1 to 3. He has read over the oral evidence of
P.W.1 complainant and contended that the first demand which was made
by the appellant is proved beyond reasonable doubt. He has read
complaint as well as contents of panchanama and oral evidence of P.W.
2 and vehemently argued that in presence of panch P.W.2, some oral
conversion has taken place there and from ground floor, when
appellant accused met the complainant and then he came back to his
chamber at upper floor from ground floor and in presence of P.W. 2,
the demand was made and the trap amount was handed over to the
accused. He argued that from the
statement recorded under Section 313 of the Criminal Procedure Code
present appellant, accused, it was his defence that the said trap
amount was inserted into his pocket, without his knowledge and that
amount was thrown away by him. He read the contents of panchnama as
well as oral evidences of the panch witness and trapping officer and
the anthracene powder was found on both the hands of accused and so
far as that probability of the defence is concerned, it can be
considered that the anthracene powder which was found on both the
hands of the appellant which might be possible by the act of the
appellant. Mr. Jani, learned APP has tried to establish that
the complainant of this case is a practicing lawyer and because of
the fact that said Ashwinbhai was relative of her senior, the present
appellant – accused has no right to take any lenient view in
the case. He has contended that from the evidence of panch witness
and the complainant, the prosecution has proved its case beyond
reasonable doubt and therefore, the contention of Mr. Anandjiwala,
learned advocate that demand is not proved has no substance. Mr. Jani
has relied upon the decision in the case of Raj Rajendra Singh Seth
V. State of Jharkhand reported in 2008 (11) SCC 681, more
particularly para 15 of the said decision, which is quoted as under:
“15.
In B.Noha v State of Kerala, it was, inter alia, observed by this
Court as follows : (SCC pp 280-81, Paras 10-11)
“10.
The evidence shows that when PW 1 told the accused that he had
brought the money as directed by the accused, the accused asked PW 1
to take cut and give the same to him. When it is proved that there
was voluntary and conscious acceptance of the money, there is no
further burden cast on the prosecution to prove by direct evidence,
the demand or motive. It has only to be deduced from the facts and
circumstances obtained in the particular case. It was held by this
Court in Madhukar Bhaskarrao Joshi v/s State of Maharashtra as
follows :
“12.
The premise to be established on the facts for drawing the
presumption is that there was payment or acceptance of gratification.
Once the said premise is established the inference to be drawn is
that the said gratification was accepted “as motive or reward”
for doing or forbearing to do any official act. So the word
“gratification” need not be stretched to mean reward
because reward is the outcome of the presumption which the Court has
to draw on the factual premise that there was payment of
gratification. This will again be fortified by looking at the
collocation of two expressions adjacent to each other like
“gratification or any valuable thing”. If acceptance of
any valuable thing can help to draw the presumption that it was
accepted as motive or reward for doing or forbearing to do an
official act, the word “gratification” must be treated in
the context to mean any payment for giving satisfaction to the public
servant who received it.”
“11.
This decision was followed by this Court in M. Narsinga Rao v/s.
State of A.P. There is no case of the accused that the said amount
was received by him as the amount which he was legally entitled to
receive or collect from PW 1. It was held in State of A.P. v.
Kammaraju Gopala Krishna Murthy that when amount is found to have
been passed to the public servant the burden is on public servant to
establish that it was not by way of illegal gratification. That
burden was not discharged by the accused.”
13. Learned
advocate Mr. Ananjiwala has lastly submitted that if this Court is
of the opinion that the judgment of the trial Court is proper then
looking to the age of the appellant and now the appellant has already
retired, some lenient view may be taken. As against this, Mr. Jani
has relied upon the decision in the case of Motaram Ram Vs. State of
Haryana reported in 2009 (12) SCC 727, more particularly, para 14,
which is as under:
“14. So
far as the issue of sentence is concerned, in view of the provisions
of Section 5(2) of the Act, the minimum sentence a Court could award
is one year and it may extend to seven years and a fine can also be
imposed. None of the grounds submitted by the learned Counsel for the
appellant that it was a very old case; the appellant had already
served about six months in jail; the appellant had refunded the
amount taken by him from the complainant; that the complainant
himself had been the abettor and could have been a co-accused for an
offence punishable under Section 109 IP Code, can be the mitigating
circumstances for which the Court may reduce the sentence taking into
consideration the proviso to Section 5(2) of the Act.”
14. I
have gone through the judgment and order of the trial Court. I have
perused oral as well as documentary evidence on record. I have gone
through the further statement recorded under Section 313 of the IPC,
of the accused. I have also gone through the judgment of the learned
Special Judge and decisions cited by the learned APP.
15. From
the oral evidence of the complainant as well as Panch witness, I am
of the view that the case is established beyond reasonable doubt that
the demand,which was made by the present appellant original accused,
is proved through the evidence of the panch witnesses as well as
complainant. I have also perused oral evidence of the complainant and
it is also proved beyond reasonable doubt that the present
complainant is a practicing lawyer and as she was not willing to
accept the demand made by the appellant accused, she approached ACB
office and the complaint was registered against the appellant,
accused. So from the contents of the complaint and oral evidence of
the complainant as well as the contents of the panchnama, the
demand, which was made by the preset appellant, is proved beyond
reasonable doubt. I have found that the complainant as well as
present appellant accused, they are from same profession. I have not
found anything to say that there was some business rivalry between
the complainant and the appellant and, therefore, the appellant has
been booked by her. Even from the sanction order, it is also
established that present appellant was a public servant and working
as Assistant Public Prosecutor in the lower court and, therefore, the
question of business rivalry does not arise. It was not found
anywhere that there was animosity between the complainant and
appellant and therefore, said false complaint was registered against
the appellant.
16. I
have also perused the evidence of trapping officer P.W.3 and it is
very much reflected from the oral evidence and from the contents of
part of preliminary panchnama that during trap, proper care and
caution was taken by the said witness. I have also perused oral
evidence of the complainant as well as Panch witnesses. I have not
found that there is no any material, which shows that the oral
version of the witnesses is produced in contradictory manner. It is
also on record that the Muddamal article contains antharacene powder
was prepared in presence of panch witnesses as well as members of
raiding party and complainant. I have not found anything from the
defence that as per the defence, the prosecution has not proved case
beyond reasonable doubt. It is true that it is not the case of the
appellant that Sanctioning Authority has given sanction without
application of mind and that issue is not argued before this Court
and therefore, the issue cannot be discussed at this stage.
17. From
the evidence of prosecution as well as defencne, the conduct of the
accused is required to be considered. The appellant – accused
was serving as Assistan Public Prosecutor in the lower Court since
long time and so the trapping officer who is a police officer, was
knowing the present appellant very well. In view of this observation,
I am of the view that when the trapping officer entered into the
place of offence at that time, said trap amount which was accepted by
the present appellant, was thrown away on the ground floor. It is
true that the learned APP has also drawn the attention from the
written statement of the present appellant accused that some trap
amount was inserted into the pocket of the present appellant without
his knowledge and then it was thrown away by him. Even if it is
believed, then the anthracene powder can be found on one hand, but in
this case from both the hands of the appellant accused, anthracene
powder was found. Therefore, the defence of the appellant is not
required to be considered. I am of the opinion that the submissions
made by learned APP is required to be considered in a positive
manner. I have also found from the oral evidence of the witnesses
that their evidences are totally corroborated with the evidence of
each other. Even though minor discrepancy
on trivial matters not affecting core of prosecution case and
it should not be resulted in rejection of evidence in entirety.
18. Learned
APP Mr.Jani has read the provisions regarding presumption enumerated
in the Prevention of Corruption Act and contended that looking to the
conduct of the appellant, presumption is required to be drawn against
the appellant. If the defence version is believed that the amount was
inserted in the pocket of the appellant without his knowledge, then
the anthracene powder would not have been found on both the hands of
the appellant. I have not found that the appellant has warned the
complainant and refused to accept the money and asked him to go away
with trap amount. However, from the explanation given by the
appellant, it appears that he has failed to explain regarding
presence of anthrancene powder which was found from both the hands of
the appellant as well as receipt of the insurance. So the provisions
of Section 20 of the Prevention of Corruption Act are straightway
applicable to the facts of the present case. It is true that the
provisions of Section 20 of the Act, should be considered in light of
the oral evidence of the witnesses as well as documentary evidence
complaint, panchnama etc.
19. From
the cross-examination of the witnesses made by the appellant before
the learned Special Judge and perusal of the oral as well documentary
evidence, it is very much clear that the appellant accused has failed
to rebut the presumption as per the provisions of Section 20 of the
Act. Even the appellant has failed to prove his defence from
cross-examination of the witnesses beyond reasonable doubt before the
learned Special Judge.
20. I
have perused the reasons assigned by the learned Special Judge. I
have not found any substance to hold that the learned Special Judge
has committed any error.
21. It
is true that learned advocate Mr. Anandjiwala has prayed to reduce
the sentence imposed upon the appellant, but I have perused both the
judgments which are relied upon by the learned APP Mr. Jani. It
clearly appears that the learned Judge has awarded lesser punishment
and hence, the sentence awarded by the learned Special Judge is quite
proper and no interference is required to be called for.
22. As
per above observation, I am of the opinion that the learned Special
Judge has not committed any error and facts or law or in appreciation
of oral as well as documentary evidence in holding the accused guilty
for the offence as alleged against him. I have no reason to interfere
with the reasons and findings arrived at by the learned Special
Judge. Therefore, I am in total agreement with the reasons assigned
by the learned Special Judge. Hence, the impugned order is required
to be confirmed and the appeal is required to be dismissed.
23. In view of the
above, the Appeal is
dismissed. The judgment and order dated 17.12.1999 passed by the
learned Special Judge, Court No.8, Ahmedabad in Special Case No.16 of
1994, is hereby confirmed.
Considering the request
made by learned counsel for the appellant – Fulchandbhai
Ambalal Patel, the appellant shall surrender before the Jail
Authority within six weeks from the date of this order, failing
which, the concerned Court shall issue non-bailable warrant to effect
the arrest of the appellant. Bail bonds shall stand cancelled. R &
P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED,J.)
ynvyas
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